Towns (a pseudonym) v Towns (a pseudonym)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0134

ANDREW TOWNS (A PSEUDONYM)	Applicant
v
NATHAN TOWNS (A PSEUDONYM)[1]	Respondent

[1]In light of the restriction on publication imposed by s 166(2) of the Family Violence Protection Act 2008, pseudonyms have been used in place of the names of the applicant and respondent.

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JUDGES:	PRIEST, KENNEDY and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2025
DATE OF JUDGMENT:	13 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 32
JUDGMENT APPEALED FROM:	[2023] VCC 1878 (Judge Robertson)

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STATUTORY INTERPRETATION – Filing of document – Where party sought to appeal Family Violence Intervention Order (‘FVIO’) in County Court – Notice of appeal provided to registry within time but not accepted for filing by registry within time – Appeal struck out on basis that notice of appeal filed out of time – When a notice of appeal is ‘filed’ within the meaning of s 116(1) of Family Violence Protection Act 2008 – Notice of appeal filed when provided in proper form to registry – Application for leave to appeal granted – Appeal allowed.

PRACTICE AND PROCEDURE – Whether proposed appeal lacks utility because FVIO has expired – Appeal has utility because FVIO gives rise to ongoing legal consequences – Appeal has utility because it has vindicatory and reputational effects.

Family Violence Protection Act 2008, s 116; Magistrates’ Court (Family Violence Protection) Rules 2018, rr 1.10, 3.02, 3.03, 14.01; Interpretation of Legislation Act 1984, s 53.

Ryan v Muir & Co [1912] VLR 411; R v His Honour Judge Fricke [1993] 1 VR 369; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Carroll (a pseudonym) v Browne (a pseudonym) [2018] VSC 25, referred to.

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Counsel
Applicant:		In person
Respondent:		Mr B Petrie
Amicus Curiae:		Dr J McComish with Dr L Hilly
Solicitors
Applicant:	n/a
Respondent:	Muir Legal

PRIEST JA
KENNEDY JA
WALKER JA:

The applicant and the respondent in this matter are brothers. On 16 November 2018, the Moorabbin Magistrates’ Court made a final family violence intervention order (‘FVIO’) against the applicant and in favour of the respondent.[2] The order was to remain in force for a period of five years. The applicant wished to appeal that order. Pursuant to s 116 of the Family Violence Protection Act 2008 (the ‘FVP Act’), any appeal was required to be filed within 30 days after the day the FVIO was made. In the applicant’s case, that required that he file any appeal on or before 17 December 2018.[3] On the present state of the authorities, the time limit prescribed by s 116 cannot be extended.[4]
[2]We note that the proceeding in the Magistrates’ Court was in federal jurisdiction because the applicant was a resident of Western Australia at the time and the respondent was a resident of Victoria, thus engaging s 75(iv) of the Constitution. Ultimately, however, nothing turns on this.
[3]The 30-day period specified in s 116 expired on Sunday 16 December 2018, however the effect of s 44(3) of the Interpretation of Legislation Act 1984 was that the time expired on Monday 17 December 2018. There was no dispute about that proposition before this Court or, indeed, before the County Court.
[4]Carroll (a pseudonym) v Browne (a pseudonym) [2018] VSC 253, [46]–[48], [62] (Richards J). There was no challenge to this decision on the appeal.
On 16 December 2018 the applicant emailed the Magistrates’ Court attaching a notice of appeal that was signed (the ‘first Form 3’). His signature appeared underneath the words ‘signature of the appellant’ (rather than in a text box next to those words) and again at the end of the form. On 17 December 2018 the Family Violence Registrar of the Magistrates’ Court emailed the applicant and asked him to sign the notice ‘in the section which states “signature of appellant”’. Later that day, by an email received by the Magistrates’ Court at 11.28 pm, the applicant attached a revised version of the notice of appeal, with his signature placed within the box on the form that stated ‘signature of appellant’ (the ‘second Form 3’). On 19 December 2018 the Registrar emailed the applicant stating that his appeal had been listed before the County Court on 4 February 2019 and attaching what appears to be the first Form 3, now stamped by the Court and signed by the Registrar.
In the course of the appeal proceeding in the County Court, the respondent submitted that the applicant’s notice of appeal had not been filed within time and sought to have the appeal struck out for want of jurisdiction. The trial judge accepted that submission and on 25 October 2023[5] the appeal was struck out.[6]
[5]We note that the trial judge heard the matter on 15 September 2023 and handed down her decision promptly on 25 October 2023. It is unclear why the preliminary question concerning jurisdiction took so long to come on for hearing.
[6][Towns] v [Towns] [2023] VCC 1878 (‘Reasons’).
On 16 November 2023 the FVIO expired.
The applicant now seeks leave to appeal the judge’s decision. He is unrepresented and his proposed grounds of appeal are confused and lengthy. Nonetheless, it is apparent from the materials that he has filed that he contends that the judge erred in concluding that his notice of appeal in relation to the FVIO was filed outside the statutory time limit. Rather, he contends, the judge should have found that his application was filed on or before 17 December 2018, within the prescribed statutory period.
The respondent, in his written case, sought to support the judge’s conclusion. In addition, the respondent contends that the application for leave to appeal lacks utility, because the FVIO has expired. In responsive submissions, the applicant contended that the existence of the FVIO harms his reputation and that thus his appeal has utility.
In light of the applicant’s unpresented status, the Court sought and obtained the assistance of counsel as amicus curiae. The Court asked the amicus to address three questions, on which the amicus filed written submissions and made oral submissions at the hearing. The questions, and the amicus’ answers to them, were as follows:
(a)Does a person against whom a family violence intervention order is made have an interest sufficient to pursue an appeal against that order after the order has expired?
Answer: yes.
(b)Did the first Form 3 comply, or substantially comply (within the meaning of s 53 of the Interpretation of Legislation Act 1984), with r 14.01 of the Magistrates’ Court (Family Violence Protection) Rules 2018?
Answer: yes.
(c)Is a notice of appeal under s 116 of the Family Violence Protection Act 2008 that is lodged electronically in the Magistrates’ Court within the time limited by s 116 for commencing an appeal to the County Court, but which is not accepted for filing by the Registrar until after that time has expired (including by reason of error or delay on the part of the Registrar), as a matter of law, filed within time?
Answer: yes
After receiving the amicus’ submissions, the respondent sought leave to file a notice of contention. The proposed ground on which he sought to uphold the judge’s decision was that, in order to commence an appeal under s 116 of the FVP Act, a person had to file their notice of appeal in person at the proper venue, which in this case was the Moorabbin Magistrates’ Court; and the applicant had not done so. At the hearing of the appeal this Court refused leave to file that document because:
(a)the point had not been taken before the trial judge, yet the respondent knew from the beginning of the proceeding that the applicant had not filed his notice of appeal in person at the Moorabbin Magistrates’ Court; and
(b)the point was not truly responsive to anything put by the amicus.
We would add that we have read the respondent’s written argument in support of his proposed notice of contention. Although we did not hear oral submissions on the issues raised by the proposed notice of contention, we consider that the point has no merit.
Prior to the hearing of the appeal, the respondent also raised a question about whether the version of the first Form 3 that was in the Appeal Book was in fact the document that had been emailed to the Magistrates’ Court on 16 December 2018. At his request, the Registry of this Court made inquiries of the County Court and the Magistrates’ Court and the Magistrates’ Court produced to this Court a copy of the document which, as it transpired, was the same as the version of the document that was in the Appeal Book. Following the production of that document, which occurred in the course of the oral hearing, the respondent conceded that the appeal ought to succeed and proposed orders that would result in the matter being remitted to the County Court for determination according to law. The applicant agreed that orders remitting the matter were appropriate. The orders reflected, in large measure, the orders the amicus had proposed ought to be made. The Court made those orders on the day of the hearing, and indicated that reasons would be provided later.
These reasons set out why the Court made the orders it did. In summary, the Court was satisfied that:
(a)The trial judge erred in concluding that the applicant had not filed his notice of appeal within the statutory time period in circumstances where the first Form 3 and the second Form 3 were each signed, contained the necessary particulars and were provided to the Magistrates’ Court within the statutory time period. The Court thus had jurisdiction to hear and determine the applicant’s appeal against the FVIO.
(b)The applicant’s appeal to this Court does not lack utility, in light of the impact of the existence of the FVIO on his reputation and the other legal consequences of a person having been the subject of a FVIO.

Relevant statutory provisions

Appeals from FVIOs are governed by div 9 sub-div 1 of the FVP Act. Section 114 of that Act provides that:
(1)A party to a proceeding under this Act may appeal against an order of the court in the proceeding …
Under s 115 of the FVP Act, the appeal must be made to the County Court (except in limited circumstances, which are not relevant in this case).
Section 116 of the FVP Act relevantly provides as follows:
(1)A person makes an appeal under this Subdivision by filing notice of the appeal with the court that made the relevant decision.
(2)The notice must—
(a)include the prescribed particulars; and
(b)be signed by the appellant; and
(c)be filed within 30 days after the day the relevant decision was made.
(3)The appropriate registrar for the court must serve notice of the appeal on—
(a)the other parties to the proceeding in which the relevant decision was made; …
…
(4)The appropriate registrar for the court must also cause the notice of appeal to be transmitted—
(a)to the County Court if the appeal is to that Court; and
(b)to the Supreme Court if the appeal is to that Court.
Section 119(1) of the FVP Act provides that the appeal is by way of a rehearing by the County Court. Section 119(2) provides that:
(2)On the appeal, the County Court … may—
(a)confirm the relevant decision; or
(b)set aside the relevant decision; or
(c)vary the relevant decision and make any other order the Magistrates’ Court … could have made and exercise any other powers that the Magistrates’ Court … may have exercised; …
Section 120(1) of the FVP Act provides that there is no appeal against the decision of, relevantly, the County Court under s 119. Section 120(2) provides that nothing in the section prevents an appeal from the County Court on the basis of jurisdictional error.
It is also appropriate to refer to the following statutory rules applicable to the proceeding:
(a)Rule 1.10 of the Magistrates’ Court (Family Violence Protection) Rules 2018 (‘the Rules’), relating to filing of documents, provides:
Except where otherwise provided by these Rules or unless the Court otherwise orders, a document is filed by being lodged with the registrar in the office of the Court at the proper venue of the Court.
Note
Proper venue is defined in section 3(1) of the Magistrates’ Court Act 1989.
(b)Rule 3.02 of the Rules details how documents in proceedings are to be prepared and the consequences if they are not prepared in accordance with the Rules. It provides:
(1)The Court may require any document in a proceeding to be prepared in any manner it thinks fit.
(2)If a document for use in the Court is not prepared in accordance with these Rules or any order of the Court—
(a)the registrar may refuse to accept it for filing without the direction of the Court; or
(b)the Court may order that the party responsible is not entitled to rely on it in any manner in the proceeding until a document which is properly prepared is filed.
(c)Rule 14.01 of the Rules provides for the form of a notice of appeal as follows:
For the purposes of section 116 of the [FVP Act], a notice of appeal must be in accordance with Form 3.

The judge’s reasons

The question before the judge was whether the applicant had ‘filed a notice of appeal’ with the Magistrates’ Court by 17 December 2018. The judge commenced her analysis by setting out the relevant statutory provisions.
In relation to the first Form 3, sent by the applicant to the Magistrates’ Court on 16 December 2018, the judge held as follows:
I am further satisfied that, on 16 December 2018 at 10.35am, the appellant sent an email to an email address designated by [the Registrar] for the Moorabbin Magistrates’ Court. According to the appellant’s affidavit, which was not challenged, that email attached to it the first Form 3. The filing details and space for provision of a signature at the end of the Notice of Appeal Form 3 appeared in a different way to the prescribed form.[7]
[7]Reasons, [39] (citations omitted).
The judge then recorded the applicant’s submission that the first Form 3 was ‘in accordance with’ the Rules because ‘although the filing details and the space for provision of a signature at the end of the Notice of Appeal Form 3 appeared in a different way to the prescribed form, the essential information was contained in the form’.[8] Her Honour then said this:
I accept that the form sent electronically on 16 December 2018 was substantially the same as the form prescribed by Form 3, in the sense that it contained the same essential details, even if they appeared in a manner which was different to that prescribed. However, notwithstanding the use of the words “in accordance” in r14.01 of the Rules, I do not agree with the appellant’s submission, as long as the form he submitted substantially complied with the requirements of Form 3, that was sufficient to satisfy the terms of s116 of the Act.[9]
[8]Reasons, [40].
[9]Reasons, [41] (emphasis added).
Her Honour explained her reasoning by reference to Richards J’s statement in Carroll (a pseudonym) v Browne (a pseudonym)[10] that the intention of the legislature was to ensure certainty and finality of FVIOs. Her Honour observed that that intention was, in part, achieved by prescribing a strict time limit for appeals, as the Court had concluded in Carroll. Her Honour continued as follows:
However, in my view, [the legislative intention] is also achieved by making provision for appeals to be commenced utilising prescribed forms. Where provision is made for a prescribed form to be used, and the provision is expressed to be in mandatory terms, in my view, the legislature intended appeals would only be able to be commenced utilising the prescribed form, as opposed to another, albeit substantially similar version of the prescribed form.[11]
[10][2018] VSC 253.
[11]Reasons, [41].
Her Honour said that she was ‘fortified’ in this conclusion by the discretion conferred on the Registrar by r 3.02(2) of the Rules to refuse to accept a document for filing if it is not prepared in accordance with the Rules.[12]
[12]Reasons, [41].
Her Honour stated that the effect of her conclusion was that although the applicant ‘lodged’ the first Form 3 on 16 December 2018, it was not ‘filed’ on that date.[13]
[13]Reasons, [42].
The judge then turned to the events of 17 December 2018.
The judge concluded that the Registrar’s email to the applicant on 17 December, requesting he submit the form with his signature in the correct section of the form, constituted a refusal by the Registrar to accept the Form 3 lodged on 16 December 2018.[14] The judge observed that the second Form 3 was received by the Magistrates’ Court at 11.28 pm on 17 December 2018. The judge then recorded the following matter:
I asked the respondent whether any point was taken about the document having been received outside business hours on 17 December 2018. The respondent’s counsel, quite properly, indicated to the Court that, because the email was received prior to 11.59pm, it was received by the Moorabbin Magistrates’ Court on 17 December 2018. Reference was made to the fact that a day includes the entire day and not fractions or parts of a day. The concession made by the respondent was appropriate.[15]
[14]Reasons, [47]. Her Honour characterised this email as requiring ‘further information’ from the applicant, but it is not clear that that is an appropriate description of what the Registrar’s email sought.
[15]Reasons, [49].
However, the respondent contended that an appeal is not ‘filed’ until it is accepted for filing by the court.[16] The respondent’s submissions on this point, which the judge accepted, were as follows:
The respondent argued that r1.10, which provides that a document is ‘filed by being lodged with the registrar’ at the proper venue of the court, had to be read together with r3.02(2)(a) of the Rules. Rule 3.02(2)(a) provides that the Registrar has power to ‘refuse to accept … [a document] for filing’ where it was not prepared in accordance with the Rules. The respondent said that occurred when Mr Eastman emailed the appellant at 9.31am on 17 December 2018, refusing to accept the Form 3 he had lodged with Moorabbin Magistrates’ Court by email on 16 December 2018.
The respondent submitted that the existence of a power in the registrar to refuse to accept a document for filing, indicated that the document was not ‘filed’ until it was accepted for filing. ‘Filing’ for the purposes of s116(2)(c) of the Act was thus more than the mere forwarding of a document by a party to the court. It was the act of the court accepting the document for filing.
The respondent submitted that the meaning of ‘filed’ for, which it contended, was consistent with the policy of the Act as reflected in s116, including by promoting certainty and finality of orders. Requiring acceptance by the court of a document for filing, such as a notice of appeal, provided certainty as to when a notice was filed in circumstances where there is no capacity to extend the time for filing.
The respondent further submitted that this interpretation was consistent with longstanding authority, to the effect that ‘filing’ is an act of the court, not a party, and consists of the act or process of placing documents in the records of the court. Reference was made to various authorities, including Purden Pty Ltd v Registrar in Bankruptcy, where the Full Court of the Federal Court, with reference to a creditor’s petition in a bankruptcy matter, noted that there was a distinction between the presentation and the filing of a bankruptcy petition. Presentation was said to be the act of a party and the act of ‘filing’ was an act of the court. Because ‘filing’ was an act of the court, namely when the court accepted the document, the Form 3, was consequently ‘filed’ on 18 December 2018, when it was accepted for filing by the registrar of the Moorabbin Magistrates’ Court.[17]
[16]Reasons, [50].
[17]Reasons, [51]–[54] (citations omitted).

After setting out the applicant’s submissions, the judge gave the following reasons for preferring the respondent’s submissions:
First, the respondent’s submissions are consistent with the policy of the Act, which is to ensure finality and certainty in family violence proceedings. The policy of the Act can only be achieved if strict time periods are enforced, and the date of filing is capable of being ascertained with certainty. The date of filing is ascertained with certainty when the court date stamps the document.
Second, although an appellant is required to comply with the Rules when seeking to file a document, the act of ‘filing’ the Notice of Appeal is an act of a different character. It is internal to the registry. The registrar may determine to refuse to accept the document for ‘filing’. Until a notice of appeal is accepted by the registrar, it is not ‘filed’.
Third, before an appeal can be accepted by the registrar for ‘filing’, a date and time for the appeal hearing must be obtained by the Magistrates’ Court from the County Court. This is because, although a notice of appeal against a final order made by the Magistrates’ Court in a family violence proceeding may be sent to the Magistrates’ Court, the appeal is an appeal to the County Court. Form 3 makes provision for the Magistrates’ Court to insert details of the appeal on the Form 3, including the County Court proceeding number and the date and time of the appeal, before the Form is stamped by the Magistrates’ Court and returned to the appellant. Those details can only be obtained from the County Court and there was no evidence that the County Court attended to provision of the requisite details on 17 December 2018 between 11.28pm and 11.59pm, that time period being outside the business hours of the County Court.
Fourth, the evidence discloses that the initial Form 3 lodged by the appellant with the Moorabbin Magistrates’ Court was refused by the registrar for filing.
The subsequent Form 3 document was lodged at 11.28pm on 17 December 2018. The Magistrates’ Court at Moorabbin considered that to have been received by the Court on 18 December 2018.
Regardless of the view of the Magistrates’ Court, for the reasons I have explained already, lodgement differs from ‘filing’. In my view, ‘filing’ only occurs when the document is accepted by the registrar. This occurred on 18 December 2018, after the registrar had obtained an appeal hearing date and court reference number from the County Court and had inserted those details into the Notice of Appeal document, stamped it, and returned the document to the appellant. Because the Notice of Appeal was not “accepted” by the registrar of the Moorabbin Magistrates’ Court until 18 December 2018, it was not “filed” until that date. That being the case, the appeal was not “filed” as required by s116(2), within thirty days after the day the relevant decision was made.[18]
[18]Reasons, [57]–[62] (emphasis added).
The judge thus struck out the appeal for want of jurisdiction.

Consideration

As noted above, there was in the end no dispute between the parties and the amicus that the judge had erred in determining that she did not have jurisdiction to hear and determine the applicant’s appeal to that Court. Nor did the respondent press its contention that the appeal to this Court lacked utility. It is appropriate for us to set out, relatively briefly, why we accepted the parties’ agreement on these matters.

Proper construction of s 116

The first issue that arises is the proper construction of s 116 of the FVP Act. That exercise is to be undertaken by reference to the text, context and purpose of the provision.[19]
[19]SAS Trustee Corporation v Miles(2018) 265 CLR 137, 149 [20] (Kiefel CJ, Bell and Nettle JJ), see also 157 [41] (Gageler J), 162–3 [64] (Edelman J); [2018] HCA 55. See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue(2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ) and the cases there cited at n 105; [2009] HCA 41.
The judge held that the act of ‘filing’ is internal to the registry, and thus is not complete until the Registrar has accepted the document for filing.[20] We do not accept that construction of s 116.
[20]Reasons, [58].
It is appropriate to commence with the text of that section which, for convenience, we set out again:
(1)A person makes an appeal under this Subdivision by filing notice of the appeal with the court that made the relevant decision.
(2)The notice must—
(a)include the prescribed particulars; and
(b)be signed by the appellant; and
(c)be filed within 30 days after the day the relevant decision was made.
(3)The appropriate registrar for the court must serve notice of the appeal on—
(a)the other parties to the proceeding in which the relevant decision was made; …
…
(4)The appropriate registrar for the court must also cause the notice of appeal to be transmitted—
(a)to the County Court if the appeal is to that Court; and
(b)to the Supreme Court if the appeal is to that Court.
There is no definition of ‘filing’ in the FVPAct.
The first point that we emphasise is that the person to whom s 116(1) is in terms directed is the person who seeks to appeal. It is that person who makes an appeal ‘by filing a notice of appeal’ with the relevant court. There is no suggestion in s 116(1) that the making of an appeal turns on any step by the registry of the court in accepting the notice of appeal. Rather, reading ss 116(1) and (2) together, the text of the legislation supports the proposition that:
(a)if a person gives a notice of appeal to the appropriate court; and
(b)the notice of appeal includes the prescribed particulars, is signed by the person, and is filed within 30 days after the relevant decision, as required by s 116(2);
then the person will have made an appeal by ‘filing’ a notice of the appeal for the purposes of s 116(1).
The proposition that an appeal is commenced when a person provides a notice of appeal to the relevant court, rather than commenced only at the later time when the registry completes a further step of accepting the notice of appeal for filing, is also supported by the context in which s 116(1) appears. That is, as we have said, s 116(1) is directed to the taking of a step by the person who seeks to appeal; in contrast, ss 116(3) and (4) are directed to the taking of particular steps by the registry. Thus, under s 116(3) the appropriate registrar is to serve the notice of appeal on various persons, and under s 116(4) the registrar is to transmit the notice of appeal to the court that is to hear the appeal. In other words, where the legislation, which is highly prescriptive, intends that a particular step be taken by the registry, it says so. Yet it makes no such provision in relation to commencement of an appeal.
Turning to purpose, the purpose of s 116(1) is to provide the mechanism by which a person can exercise their right of appeal in relation to an FVIO, that right being conferred by s 114 of the FVP Act. That purpose is advanced by the construction that we have adopted. While it may be accepted that an additional purpose of s 116(1) is, as the judge found, to promote certainty, that purpose, too, is achieved by the construction that we have adopted, because there will be a record of when a document is provided to the court. In any event, we do not consider that the purpose of certainty requires the adoption of a construction that shuts a person out of their right to appeal.
We also note that rule 1.10 provides that ‘a document is filed by being lodged with the registrar’. While the terms of a rule cannot override or dictate the proper interpretation of a statutory provision, r 1.10 is consistent with our conclusion that an appeal is commenced by the person who seeks to make an appeal giving the document to the court.
We note that rr 3.02 and 3.03 confer on the registry a power to refuse to accept a particular document for filing. Rule 3.02 applies where a document is not prepared in accordance with the rules; and r 3.03 applies were the registrar considers that the form or content of the document would be an abuse of process. Those provisions are not displaced by s 116. Thus, if the registry properly refuses to accept a notice of appeal for filing, it would be the case that the notice will be taken to have not been filed and the court’s jurisdiction is not engaged. But the recognition of a power to refuse to accept a document for filing is quite different from the proposition that a document is not filed until the Registrar has taken a positive step to accept it for filing.
A mere delay in processing a document that has been lodged would not constitute a refusal to accept the document for filing. Were it otherwise, a person’s right of appeal, and the County Court’s jurisdiction to hear and determine such appeal, could be defeated by some delay occurring within the registry; that cannot be correct (absent some clear and express legislative statement to the contrary). Thus, for example, if a person lodges a document electronically with a court, but the court does not take administrative steps in relation to that document for some days due to workload or oversight, such a delay would not mean that the person did not file their notice of appeal within the statutory time period. To conclude otherwise would, in our opinion, bring the administration of justice into disrepute — it simply cannot be the case that a person who correctly takes all the steps within their power to take in relation to their appeal could lose their right to appeal by reason of administrative oversight or delay occurring in the court.
Furthermore, although the registry has a power to refuse to accept a document for filing, in our view a wrongful refusal to accept a document for filing would not defeat a person’s right to appeal where the correction of the erroneous refusal occurs after the expiry of the time period set out in s 116(2). Again, were it otherwise, a person’s right of appeal, and the County Court’s jurisdiction to hear and determine such appeal, could be defeated by some wrongful act of the registry, which cannot be correct. It simply cannot be the case, absent some clear and express legislative statement to the contrary, that a person who correctly takes all the steps within their power to take in relation to their appeal could lose their right to appeal by reason of an error on the part of a registrar or registry officer.
In our view, if the legislature had intended the concept of ‘filing’ to depend on an act of registry, it could have readily included words to that effect. It is of some note that, not only are there no such clear words, there is no definition of ‘filing’ at all. Rather, filing is dealt with in the Rules, rule 1.10 of which equates filing with ‘being lodged with the registrar’.
In that regard, the amicus referred this Court to various cases that support the proposition that error of this kind will not deprive a person of their legal rights.[21] As the amicus submitted, there is a longstanding principle of law ‘that where the error which has crept into the proceedings is one occasioned by the Judge or the Court itself, that error should not, ordinarily, at all events, prejudice either side.’[22] Again we accept the amicus’ submission that, consistently with these principles, courts have often exercised their powers to disregard a procedural irregularity that has arisen when something has wrongly been rejected by the registry, or processed only after the limit had apparently expired.
[21]Ryan v Muir & Co [1912] VLR 411; Murnane v Findlay [1926] VLR 80; Simpson v Knowles [1974] VR 190; Gower v Woodman Sales Pty Ltd [1988] 2 Qd R 15; Vignes v Clarke [1990] 2 Qd R 593; Australian Electoral Commission v Lalara (1994) 53 FCR 156; Marson v Network Ten Pty Ltd [2016] NSWSC 1245; Tu v Chang [2017] NSWDC 352.
[22]Ryan v Muir & Co [1912] VLR 411, 413 (Madden CJ, Hood J agreeing at 414). This principle has been encapsulated in the Latin maxim actus curiae neminem gravabit: namely, that an act of the court shall prejudice no one: MAC v The Queen (2012) 34 VR 193, 201 [34] (Nettle JA, Bongiorno JA agreeing at 204 [50]); [2012] VSCA 19.
Thus, as a general proposition, if a person demonstrates that they provided a notice of appeal in proper form to the registry within time, and further demonstrates that the registry wrongfully refused to accept the document for filing, the court will not be prevented from hearing the appeal, and the notice of appeal will be taken to have been filed on the day that it was provided to the registry.
It is unnecessary for us to consider these cases further, save to say that our construction of s 116(1) is generally consistent with the approach taken in these cases.
Our conclusion is also reinforced by the fact that there is no provision for any extension of time to be granted by a court in relation to a notice of appeal. If there were such provision then if the court, through internal delay or erroneous rejection of a document for filing, caused the document not to be accepted for filing within the relevant time, there would be scope for a judge of the court to correct the injustice that would otherwise result by granting an extension of time. But where no extension of time is possible, then the effect of the judge’s construction is that an administrative delay on the part of the court, or an erroneous rejection of a notice of appeal for filing, would be unable to be corrected and the person would lose their right to appeal. Such an outcome would, in our view, be highly undesirable.
We note that at trial the respondent referred the judge to various authorities said to support the proposition that ‘the act of “filing” is an act of the court, not of a party, and consists of the act or process of placing documents in the records of a court’.[23] There are, indeed, various authorities to that effect. These authorities no doubt influenced the judge’s approach to the construction of s 116(1).
[23]Reasons, [54]. The respondent referred to Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477; [1988] FCA 339; Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468; [1998] FCA 341; Johnston v Vintage Developments Pty Ltd [2006] FCAFC 171; Nugawela v Deputy Commissioner of Taxation [2016] FCA 578; Kimber v Owners Strata Plan No 48216 [No 2] [2018] FCA 406; Purden Pty Ltd v Registrar in Bankruptcy (1982) 43 ALR 512.
However, all of the cases to which the respondent referred were cases in the Federal Court; and none of them concerned this particular legislation. In our opinion, although these authorities contain generalised statements about what the word ‘filing’ traditionally means, or has been understood to mean, they do not dictate the proper construction of s 116 of the FVP Act. That is particularly so in light of the decision of this Court in R v His Honour Judge Fricke, which concerned the use of the term ‘file’ in s 30(2)(a) of the Magistrates’ Court Act 1989. This Court made the following observations:
What is the act of filing? We refer to what was said by Stout CJ in Re Commercial Union Assurance Co (Ltd) … ‘“ … What is the meaning of the word ‘filed’? Filing, it has been said, is the means adopted of keeping Court documents (see Tomlin's Law Dictionary and Sweet's Dictionary). The method of filing, or of putting the documents on a file of thread, wire, or string, has, in all Courts, it is said, but the English Bankruptcy Court, been discontinued, but the word has been kept. In its primitive meaning ‘filing’ means putting the documents on a file (see American and English Encyclopedia of Law: Title ‘File’); but now documents are kept together by other methods. ‘Filing’ now really means depositing in a Court office. It has, in my opinion, acquired this secondary meaning; and in Wharton's Law Lexicon it is said that ‘to file’ means to deposit at an office … I am bound, in my opinion, to interpret the word ‘filed’ in its popular and usual sense. In none of the Supreme Court offices of this colony are any documents filed, using that word in its primitive sense.”’ If the word ‘file’ be used in its primitive sense, it must be the registrar or his clerks who alone can ‘file’ the document. In its popular and usual sense, ‘filing’ means no more than depositing the document at the relevant court office for the purpose of its use in the court. Obviously, in s 30(2)(a), the word has the popular meaning.[24]
[24][1993] 1 VR 369, 372 (Fullagar, Tadgell and JD Phillips JJ) (emphasis added) (citations omitted). This passage does not appear to have been clearly drawn to the judge’s attention, although a reference to it was contained in a footnote to the respondent’s submissions below.
We consider that, for the reasons we have outlined, the concept of ‘filing’ in s 116(1) of the FVP Act should similarly mean the act of the person in providing a notice of appeal to the appropriate registry.

Application of s 116 in this case

The question then is how s 116 applies in the present case.
In relation to the first Form 3, the judge concluded that it was not filed within time because, although it was ‘substantially the same as the prescribed form’, that was not sufficient to comply with s 116 of the FVP Act.[25] We consider that the judge erred in so concluding. That is because the judge appears not to have had s 53 of the Interpretation of Legislation Act drawn to her attention. That section provides as follows:
[25]Reasons, [41].
Strict compliance with prescribed forms not necessary
Where a form is prescribed by an Act or subordinate instrument for any purpose, any form in or to the like effect of the prescribed form shall, unless the contrary intention appears, be sufficient in law.
Thus, to the extent that the form used by the applicant differed from the Form 3 prescribed by the Rules, so long as it was to like effect it would be sufficient in law. Section 53 is, as it says, subject to a contrary intention; but we can see nothing in the relevant legislation in this case that manifests such a contrary intention.
Thus, to the extent that the judge’s decision turned on the appearance of the first Form 3 being different from the prescribed form, we consider that her Honour erred. As the amicus submitted, the judge did not identify any meaningful departure from the prescribed form. She did not find that the first Form 3 lacked any prescribed details. To the contrary, her Honour appeared to accept that the first Form 3 contained the ‘the same essential details’ as required by the prescribed form.[26] In that context, we conclude that it was a form ‘in or to the like effect’ and was sufficient in law pursuant to s 53.
[26]Reasons, [41].
In light of the above matters, we consider that, by filing the first Form 3, the applicant had filed his notice of appeal within the statutory time period.
For completeness, it is also arguable that the judge was wrong as a matter of fact to conclude that the Registrar had refused to accept the first Form 3 for filing. That is because, although on 17 December 2018 the Registrar asked the applicant to submit a revised form with his signature in the correct section of the form, in fact on 18 December 2018 the version of the form that the Registrar treated as accepted was the first Form 3. It was that version that the Registrar stamped and signed and returned to the parties. That means that the Registrar either did not refuse to accept the first Form 3 for filing or, alternatively, that although he initially refused to accept the first Form 3, he later changed his mind and accepted that form for filing. And, for the reasons already given, the fact that he did so after the time for filing had expired did not have the consequence that the applicant had failed to file his notice of appeal within time.

Furthermore, if, contrary to the above, the judge was correct to conclude that the Registrar had refused to accept the first Form 3 for filing, we consider that the Registrar erred in doing so. As set out above, the form contained the prescribed particulars and was signed by the applicant. The fact that the applicant had not signed the form in the place that the Registrar considered to be the ‘correct section’ of the form was not sufficient to render the form non-compliant. Thus the Registrar ought not have refused to accept the form for filing. The authorities referred to above make clear that an error on the part of a court or its staff cannot have the effect that a person will be deprived of their right to appeal. Rather, the Registrar’s error means that the refusal to accept the document for filing must be disregarded, and the document is taken to have been filed when it was provided to the Registrar.
Finally, even if the first Form 3 was not filed on 16 December 2018, we consider that the judge was wrong to conclude that the second Form 3 had not been filed within the statutory period. That form — which was accepted by both parties and the judge as being entirely compliant with s 116 and the Rules — was sent by email to the Magistrates’ Court (in accordance with the instructions given by the Court as to how a notice of appeal was to be filed) within the statutory time period. As the judge noted, no point was taken about the fact that the email was not received by the Magistrates’ Court until 11.28 pm on 17 December 2018 (ie outside the normal business hours of the that Court).
The judge concluded that the second Form 3 was not filed until the Registry had obtained a date from the County Court and stamped the form, which occurred on 18 December 2018. However, for the reasons given above, the fact that the Magistrates’ Court did not itself take any steps in relation to the form until 18 December 2018 does not entail the conclusion that the form was not ‘filed’ by the applicant until 18 December 2018. Rather, it was filed on 17 December 2018 when it was sent to the Magistrates’ Court. This was within time.

Utility of the appeal

It remains to consider the question whether the applicant’s appeal of the FVIO has any utility, now that that order has expired. For the reasons that follow, we consider that the applicant’s appeal will have utility, so that the respondent’s argument in this regard provides no basis for refusing leave to appeal.
First, as the amicus submitted, the fact that a person has been subject to a FVIO gives rise to ongoing legal consequences, even once the order has expired:
[T]his includes being a ‘prohibited person’ under the Firearms Act 1996 (Vic) for five years after the person ceased to be subject to the order.[27] Other statutory consequences can arise in the field of residential tenancies,[28] freedom of information,[29] bail,[30] and imprisonment;[31] as well as the information-sharing provisions in Part 5A of the Act. A past family violence order may also have ongoing significance for other regulatory decisions about a person, such as whether they are ‘fit and proper’ to hold an occupational licence;[32] whether they have committed ‘unprofessional conduct’ or ‘professional misconduct’ in a regulated profession;[33] or whether they should be excluded from certain regulated activities.[34]
[27]Firearms Act 1996, ss 3 (definition of ‘prohibited person’), 189.
[28]Residential Tenancies Act 1997, ss 206AG, 420A, 420B.
[29]Freedom of Information Act 1982, s 33(2AB).
[30]Bail Act 1977, s 5AAAA.
[31]Corrections Act 1986, s 30C.
[32]See, eg, Commercial Passenger Vehicle Industry Act 2017, s 253; Syed v Commercial Passenger Vehicles Victoria (Review and Regulation) [2021] VCAT 1108.
[33]See, eg, Health Practitioner Regulation National Law (Victoria) Act 2009; Nursing and Midwifery Board of Australia v GMR (Review and Regulation) [2020] VCAT 157; Pharmacy Board of Australia v JLH (Review and Regulation) [2024] VCAT 466.
[34]See, eg, Racing Act 1958, s 33; Nikolic v Chief Commissioner of Police [No 2] [2016] VSC 333.
Secondly, an appeal will not lack utility if it has vindicatory and reputational effects, even in respect of an expired order. As Mason CJ, Dawson, Toohey and Gaudron JJ observed in Ainsworth v Criminal Justice Commission, ‘the law proceeds on the basis that reputation itself is to be protected’.[35] In the exercise of appellate jurisdiction, the setting aside of an order that should not have been made can have an obvious vindicatory effect. In the present case the applicant asserted that the making and existence of the FVIO had a negative effect on his reputation and that, were the FVIO ultimately to be set aside, that would have a positive or vindicatory effect on his reputation. We accept that submission. Thus the applicant’s appeal in this case has utility even though the FVIO has expired.
[35](1992) 175 CLR 564, 577; [1992] HCA 10.

Conclusion

For the foregoing reasons, we granted the application for leave to appeal, allowed the appeal, set aside the judge’s order striking out the applicant’s appeal, and directed the County Court to hear and determine the applicant’s appeal to that Court according to law.
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[2025] VSCA 32

13 March 2025