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Towns (a pseudonym) v Towns (a pseudonym)

Towns (a pseudonym) v Towns (a pseudonym)

Case [2024] VSCA 300 10 December 2024

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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:	McLEISH, KENNEDY and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	10 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 300
JUDGMENT APPEALED FROM:	[2023] VCC 1878 (Judge Robertson)

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PRACTICE AND PROCEDURE – Application for summary dismissal – Where application for leave to appeal concerns Family Violence Intervention Order (‘FVIO’) – Whether application for leave to appeal lacks utility because FVIO has expired – Arguable that application does not lack utility – Application for summary dismissal refused.

PRACTICE AND PROCEDURE – Application for security for costs – Applicant for leave to appeal resident outside jurisdiction and has no substantial assets in jurisdiction – No evidence that order for security would stifle reasonably arguable claim – Applicant’s case on application for leave to appeal plausible – Application for leave to appeal raises issue of public interest – Respondent’s delay in seeking order for security relatively short – Application for security for costs granted.

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Counsel
Applicant:		In person
Respondent:		Mr B Petrie
Solicitors
Applicant:	Not applicable
Respondent:	Muir Legal

MCLEISH JA
KENNEDY JA
WALKER JA:

Introduction and summary

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. 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 ‘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.[2] The time limit prescribed by s 116 cannot be extended.[3]
[2]The 30-day time limit ended at 11:59 pm on 16 December 2018. Because that day was a Sunday, the final day for filing was 17 December 2018, pursuant to s 44(3) of the Interpretation of Legislation Act 1984.
[3]Carroll (a pseudonym) v Browne (a pseudonym) [2018] VSC 253, [27], [46]–[48], [62] (Richards J).
The Act requires an appeal from a FVIO, which lies to the County Court, to be filed in the Magistrates’ Court.[4] On 16 December 2018 (a Sunday) 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’. On 17 December 2018 the Family Violence Registrar of the Magistrates’ Court (the ‘Registrar’) emailed the applicant and asked him to sign the notice ‘in the section which states “signature of appellant”’. Later that day the applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Towns (a pseudonym) v Towns (a pseudonym)

Details

AGLC: Towns (a pseudonym) v Towns (a pseudonym) [2024] VSCA 300
Case: [2024] VSCA 300
Decision Date: 10 December 2024

CaseChat Overview and Summary

The case involved an application for summary dismissal and an application for security for costs, both in the context of an appeal concerning a Family Violence Intervention Order. The appeal was brought by Towns (the applicant) against Towns (the respondent). The applicant sought leave to appeal against a decision that had dismissed their appeal of a FVIO. The applicant argued that the FVIO had expired, suggesting that the application for leave to appeal lacked utility. However, the court held that it was arguable that the application did not lack utility. The court also considered an application for security for costs, given that the applicant resided outside the jurisdiction and had no substantial assets in the jurisdiction. The court found that there was no evidence that an order for security would stifle a reasonably arguable claim, and the applicant's case on the application for leave to appeal was plausible. The court further noted that the application for leave to appeal raised an issue of public interest, and the respondent's delay in seeking an order for security was relatively short. Consequently, the application for security for costs was granted.

The primary legal issues before the court were whether the application for leave to appeal lacked utility due to the expiration of the FVIO and whether the applicant was liable for the respondent’s costs, given that the applicant resided outside the jurisdiction and had no substantial assets within it. The court considered whether the application for leave to appeal had arguable merit and whether the applicant’s financial situation justified an order for security for costs. The court held that the application for leave to appeal was not devoid of utility, as there was a plausible argument that the appeal could proceed despite the FVIO's expiration. Regarding the application for security for costs, the court acknowledged the public interest in the case and found that there was no evidence suggesting that an order for security would hinder a reasonably arguable claim. Given these findings, the court granted the application for security for costs.

The court found that the application for summary dismissal should be refused as it was arguable that the application for leave to appeal did not lack utility, despite the FVIO's expiration. The court also determined that the application for security for costs should be granted, as the applicant was not a resident of the jurisdiction and had no substantial assets within it. The court took into account the public interest in the case, the plausibility of the applicant’s case, and the relatively short delay by the respondent in seeking an order for security. These findings led to the conclusion that the applicant should provide security for the respondent’s costs.

Orders