Walles v Knoester
[2025] VSCA 188
•20 August 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2025 0048 |
| SHIMON WALLES | Applicant |
| v | |
| BREE KNOESTER | Respondent |
---
| JUDGES: | Richards JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 20 August 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 188 |
| JUDGMENT APPEALED FROM: | Walles v Knoester, County Court of Victoria, 4 November 2021 (Judge Hinchey) |
---
PRACTICE AND PROCEDURE – Application for extension of time within which to file application for leave to appeal – Application for leave to appeal filed more than three years out of time – Application for extension of time refused – Proposed appeal totally without merit – Application for leave to appeal dismissed.
Personal Safety Intervention Orders Act 2010 ss 91–4, 97; Supreme Court (General Civil Procedure) Rules 2015 rr 56.02, 64.08.
Austin v Dobbs [2019] VSC 355; Austin v Dobbs [2019] VSCA 296, referred.
---
RICHARDS JA:
Shimon Walles is the respondent to a final personal safety intervention order made in the Magistrates’ Court of Victoria on 5 July 2021 (‘final order’). The final order was made on the application of Bree Knoester, Mr Walles’s former solicitor, who is the affected person protected by the final order. Mr Walles was not present at the hearing on 5 July 2021, and was served with the final order on 19 July 2021.
On 24 August 2021, Mr Walles filed a notice of appeal in the County Court against the final order. Because the notice of appeal was filed out of time,[1] the County Court considered whether it had any discretion to extend the time within which to file a notice of appeal under the Personal Safety Intervention Orders Act 2010 (‘PSIO Act’).
[1]An appeal under s 91(1) of the Personal Safety Intervention Orders Act 2010 (‘PSIO Act’) must be brought within 30 days after the day of the relevant decision: s 93(2)(c).
On 4 November 2021, a judge of the County Court found that there was no discretion to extend the time within which Mr Walles could file his notice of appeal,[2] and ordered that the appeal be struck out as it was lodged out of time (‘County Court orders’).
[2]Walles v Knoester (County Court of Victoria, Judge Hinchey, 4 November 2021) [8]–[10] (‘Reasons’).
On 27 April 2025, Mr Walles filed an application for leave to appeal the County Court orders to this Court (‘leave application’). He also applied for an extension of time in which to file his appeal and a stay of enforcement of the final order pending the appeal.
Ms Knoester opposed the application for an extension of time, and objected to the competency of the application for leave to appeal and the application for an extension of time.
On 22 July 2025, the Registrar of the Court of Appeal referred Mr Walles’s applications and Ms Knoester’s objection to competency to me, to be considered and dealt with under r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’). I did not consider it necessary or desirable to have an oral hearing, and have determined the matters referred to me on the papers.
For the reasons that follow, the application for an extension of time is refused and the application for leave to appeal is dismissed. The application for a stay therefore falls away.
Relevant provisions
The main purposes of the PSIO Act are:[3]
(a) to protect the safety of victims of assault, sexual assault, harassment, property damage or interference with property, stalking and serious threats; and
(b) to promote and assist in the resolution of disputes through mediation where appropriate.
[3]PSIO Act, s 1.
In the PSIO Act, ‘court’ means the Magistrates’ Court or, if the application is being dealt with by the Children’s Court, that court.[4] In this case, the application for a PSIO against Mr Walles was made to and dealt with by the Magistrates’ Court.
[4]PSIO Act, s 4 (definition of ‘court’).
Part 3 of the PSIO Act provides for applications for personal safety intervention orders (‘PSIOs’). An application for a PSIO must be made in accordance with pt 3 div 1, which enables an affected person to apply for a PSIO at the proper venue of (relevantly) the Magistrates’ Court.[5]
[5]PSIO Act, ss 12, 15.
The Magistrates’ Court may make an interim PSIO under pt 3 div 3, and must hear a contested application for a final PSIO in accordance with pt 3 div 4. Relevantly, s 44 provides:
Mention date
(1)The court must not proceed to hear a contested application for a final order on a mention date unless the court is satisfied that—
(a)all the parties to the proceeding have had an opportunity to seek legal advice and legal representation; and
(b)all the parties to the proceeding consent to the hearing of the contested application on the mention date; and
(c)it is fair and just to all the parties to hear the application on the mention date.
(2)Subsection (1) does not prevent the court making a final order on a mention date if—
(a)all the parties to the proceeding have consented to, or are not opposed to the making of, the order in accordance with section 64; or
(b)the court is satisfied the respondent has been served with a copy of the application for a personal safety intervention order and has not attended court on the mention date.
Division 6 of pt 3 provides for the making of final PSIOs. Section 61(1) provides:
The court may make a final order if the court is satisfied, on the balance of probabilities, that—
(a)the respondent has—
(i)committed prohibited behaviour against the affected person and—
(A) is likely to continue to do so or do so again; and
(B) the respondent’s prohibited behaviour would cause a reasonable person to fear for his or her safety; or
(ii)stalked the affected person and is likely to continue to do so or do so again; and
(b)the respondent and the affected person are not family members; and
(c)it is appropriate in all the circumstances of the case to make a final order.
Division 11 of pt 3 relates to appeals and rehearings.
Section 91(1) provides that a party to a proceeding under the PSIO Act may appeal against an order of the court in the proceeding or a refusal of the court to make an order, referred to as a ‘relevant decision’. There is no appeal against an interim order or a refusal to make an interim order.[6] Where the relevant decision is made by a magistrate, an appeal lies to the County Court.[7]
[6]PSIO Act, s 91(2)(b).
[7]PSIO Act, s 92(a). The appeal must be made to the Trial Division of the Supreme Court if the order is made by the President of the Children’s Court, and to the Court of Appeal if the order is made by the Chief Magistrate who is a dual commission holder: PSIO Act, s 92(b)–(c).
An appeal brought under s 91 must be made by filing notice of the appeal with the court that made the relevant decision within 30 days after the day the relevant decision was made.[8] The PSIO Act does not include a provision that enables a court to extend this time limit.
[8]PSIO Act, ss 93(1), (2)(c).
An appeal does not stay the operation of the relevant decision.[9] However, the court that made the relevant decision may stay the decision pending determination of the appeal.[10]
[9]PSIO Act, s 94(1).
[10]PSIO Act, s 94(2).
Under s 96(1), the appeal is by way of a rehearing. On the appeal, the County Court’s powers include confirming the relevant decision, setting it aside, or varying it and making another order that the Magistrates’ Court could have made.[11]
[11]PSIO Act, s 96(2).
Section 97 provides:
No further appeal
(1)There is no appeal against the decision of the County Court or the Supreme Court under section 96.
(2)Nothing in this section prevents an appeal from the County Court or the Supreme Court on the basis of a jurisdictional error.
Section 99 provides for the rehearing of a proceeding in certain circumstances:
(1)The respondent for a final order may, in accordance with the rules, apply to the court for a rehearing of the proceeding only if—
(a)the application for the order—
(i)was not personally served on the respondent; and
(ii)was not brought to the respondent's attention under an order for substituted service; or
(b)there are exceptional circumstances and a rehearing is fair and just in all the circumstances of the case.
(2)If the court is satisfied, on the balance of probabilities, that the grounds referred to in subsection (1) have been established, the court may rehear the matter.
(3)An application under this section does not operate as a stay of the final order.
(4)If an applicant under this section fails to attend at the time fixed for the hearing of the application and the application is struck out, the applicant may reapply only with the leave of the court.
Judge’s Reasons
The main issue considered by the judge was whether the County Court has jurisdiction to hear an appeal under the PSIO Act which is filed out of time.
The judge noted that s 93(2)(c) of the PSIO Act requires a notice of appeal to be ‘filed within 30 days after the day the relevant decision was made’.[12] The final order had been made on 5 July 2021, and was served on Mr Walles on 19 July 2021.[13] His notice of appeal was filed on 18 or 24 August 2021, more than 30 days after the final order was made. The judge recorded that Mr Walles appeared to accept that fact.[14]
[12]Reasons, [3].
[13]Reasons, [2].
[14]Reasons, [4].
The judge summarised Ms Knoester’s submissions in relation to this point, as follows:[15]
Counsel for the respondent argued that by reason of the fact that the Notice of Appeal was filed more than 30 days after the date on which the final Order was made, the County Court has no jurisdiction to hear the appeal. It was argued that the Court has no discretion to extend the time within which a Notice of Appeal may be filed under the PSIO Act and that in those circumstances, I am bound to strike out the appeal.
In support of this submission, the respondent relied upon the case of Austin v Dobbs [2019] VSC 355, in which Justice Ginnane held that in an Appeal against a Personal Safety Intervention Order made under the PSIO Act, the County Court has no discretion to extend the time within which a Notice of Appeal may be filed. The same decision has been reached in relation to the interpretation of the appeal provisions of the Family Violence Protection Act 2008, which provisions have identical wording to that set out in the PSIO Act.[16]
[15]Reasons, [5]–[6].
[16]Carroll (a pseudonym) v Browne (a pseudonym) [2018] VSC 253; Summers (a pseudonym) v McKenzie (a pseudonym) [2015] VCC 2015.
Next, the judge summarised Mr Walles’s submissions in response:
Mr Walles opposed this submission, and argued:
(a)that s 99 of the PSIO Act confers on the Court the power to grant him a re-hearing;
(b)that rule 3.02 of the County Court Rules of Civil Procedure confers on the Court the power to extend the time within which a Notice of Appeal under the PSIO Act may be filed;
(c)that the case law relied upon by the respondent is not binding upon the Court because it relates to the interpretation of the Family Violence Protection Act 2008, which statutory regimen is different to that contained in the PSIO Act; and
(d)that by reason of the circumstances in which the final Order was made, namely that it was made in his absence, denying him the right to be heard, together with other personal matters including the stress and confusion which Mr Walles has experienced throughout this protracted proceeding, the Court ought to exercise its discretion to extend the time in which the Notice of Appeal may be filed under the PSIO Act.[17]
[17]Reasons, [7].
The judge then stated her conclusions as to jurisdiction:
Having carefully considered this matter and having regard to the relevant case law, by which I am bound, I am satisfied that I have no discretion to extend the time within which Mr Walles may file his Notice of Appeal.
In particular, I find:
(a)that s99 of the PSIO Act has no application to this matter, as it relates to an application for a re-hearing by the Magistrates Court. The specific reference to “the court” in that section, is clearly a reference to the Magistrates Court, being the Court in which the final PSIO was made;
(b)Rule 3.02 of the County Court Rules of Civil Procedure has no application to this proceeding. That is because, by its terms, this rule operates only to extend any time limit set by the rules, or by consent, a time limit imposed in an order made by a Judge. The rule does not relate to any time limit set down in an Act of Parliament;
(c)the two decisions of the Supreme Court of Victoria, by which I am bound, specifically considered the issue of whether it is possible to extend the prescribed time for filing a Notice of Appeal against an intervention order. In Austin v Dobb, Justice Ginnane considered this question in circumstances where the intervention order had been made under the PSIO Act. In that case, his Honour decided that there is no discretion for the County Court to extend the time limit set out in the PSIO Act. Given this, I am satisfied that the Court is unable to exercise any discretion in Mr Walles favour, no matter what the reasons for the late filing of the Notice of Appeal may be, or what the circumstances of the hearing of the final Order were.
In those circumstances, there is no option but to strike out the Appeal. I will make that order.[18]
[18]Reasons, [8]–[10].
Lastly, the judge considered, and refused, Ms Knoester’s application for costs of the proceeding.[19]
[19]Reasons, [11]–[20].
Competence of application for leave to appeal
Ms Knoester objected to the competency of Mr Walles’s applications, on the following grounds:
1. The Magistrates’ Court made a Personal Safety Intervention Order (the Order) which protected the Respondent from the Applicant by ordering that he not engage in certain conduct. The Order was made pursuant to s 61 of the Personal Safety Intervention Order Act (the Act).
2. The Applicant purported to appeal against the Order to the County Court pursuant to s 91 of the Act, but only after the time provided by s 93(2)(c) had expired. The Act, which contains a carefully calibrated appeal regime, does not give jurisdiction to extend the time limit for appealing against the making of an order in the Magistrates’ Court. After a hearing, the purported appeal was therefore struck out by a Judge of the County Court on 4 November 2021.
3. The Applicant now purports to seek leave to appeal against the orders made by the County Court disposing of the purported appeal to that Court.
4. There is no jurisdiction to entertain the present application for leave to appeal to this Court from the result of the appeal to the County Court. Section 97(1) of the Act specifically ousts such jurisdiction, by providing that “[t]here is no appeal against the decision of the County Court … under s 96”.
5. Section 97(2) preserves the right to seek judicial review on the basis of jurisdictional error (as is confirmed by s 182(1) of the Act, in light of s 85(5) and (6) of the Constitution Act 1975) and is therefore irrelevant to the present issue.
6. It follows that the purported appeal is incompetent.
Applicant’s submissions
Mr Walles submitted that this argument failed on legal, procedural, and human rights grounds. He said that his proposed appeal was competent and justiciable because, in his submission:
(a)He was under documented psychological distress at the time of the final order, suffering from clinically diagnosed depression and anxiety that significantly impaired his capacity to act within the statutory timeframe. The County Court struck out his appeal solely on the grounds of lateness, which was caused by his disability-related impairment and not indifference or misuse of the process. This engaged the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’) and obligations under the Disability Discrimination Act 1992 (Cth) (‘DD Act’).
(b)Section 93(2)(c) of the PSIO Act is procedural, not jurisdictional. Courts routinely distinguish between jurisdictional and procedural provisions. Time limits such as s 93(2)(c) exist for administrative orders, not to extinguish rights where injustice would result, and a discretionary extension of time is appropriate in cases involving diagnosed incapacity.
(c)While s 97(1) purports to bar further appeal of County Court decisions made under s 96, s 97(2) preserves the Court of Appeal’s jurisdiction to review decisions involving jurisdictional error. The County Court’s conclusion that it lacked power to grant an extension of time involved jurisdictional error reviewable under s 97(2) of the PSIO Act and s 85(5) of the Constitution Act 1975, and thus fits squarely within the Court of Appeal’s supervisory jurisdiction.
(d)To dismiss the appeal on strictly procedural grounds would breach fundamental rights, including the right to equal protection under the law without discrimination based on disability,[20] and the right to a fair hearing.[21] Denying access to appellate review due to mental illness would constitute indirect disability discrimination, contrary to the Equal Opportunity Act 2010. Rigid proceduralism should not operate to exclude the vulnerable from justice.
(e)The notice of objection to competency was itself filed out of time, four days after the 14 day deadline provided in r 64.33(1) of the Rules. This procedural default should weigh heavily against Ms Knoester’s demand for strict compliance.
[20]Charter of Human Rights and Responsibilities Act 2006, s 8 (‘Charter’).
[21]Charter, s 24.
In summary, Mr Walles submitted that his appeal was competent and ought to proceed to a hearing on the merits, because:
(a)The time limitation is procedural and discretionary, not jurisdictional.
(b)The delay was medically excusable, grounded in formal diagnosis.
(c)Human rights and constitutional protections require that courts provide access and reasonable adjustments to vulnerable parties.
(d)Ms Knoester’s objection is procedurally defective and legally unsustainable.
Consideration of competency of appeal
This Court’s jurisdiction to hear an appeal from an order of a lower court is a creation of statute; it is not derived from the common law or the inherent jurisdiction of the Supreme Court.[22] The PSIO Act provides a right of appeal from a final PSIO, made by a magistrate in the Magistrates’ Court, to the County Court.[23] No further appeal avenue is provided under the PSIO Act.
[22]NH v DPP (SA) (2016) 260 CLR 546, 574 [54] (French CJ, Kiefel and Bell JJ); [2016] HCA 33.
[23]See [14] above.
To the contrary, s 97(1) expressly provides that there is no appeal against a decision of the County Court on an appeal. The purpose of the limitation is to prevent a proliferation of proceedings and the involvement of those subjected to prohibited behaviour or stalking in further court hearings.[24]
[24]Victoria, Parliamentary Debates, Legislative Council, 29 July 2010, 3485 (Gavin Jennings, Minister for Environment and Climate Change, and Minister for Innovation).
On its face, s 97(2) preserves a right to ‘appeal’ from the County Court or the Supreme Court on the basis of a jurisdictional error, while not identifying the avenue of appeal in either case. I understand s 97(2) to be directed to preserving the Supreme Court’s constitutionally protected supervisory jurisdiction to grant relief in respect of jurisdictional error by a lower court.[25] However, the use of the word ‘appeal’ instead of ‘review’ is confusing, particularly for a litigant in person such as Mr Walles.
[25]Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (‘Kirk’).
It is evident from Mr Walles’s submissions on the competency of the appeal that he seeks to invoke the supervisory jurisdiction of the Supreme Court in respect of the County Court orders. Section 97 of the PSIO Act does not remove that supervisory jurisdiction, which would in any event be beyond the Parliament of Victoria’s legislative power.[26] The jurisdiction is generally exercised by a single judge in the Trial Division of the Supreme Court and does not form part of the Court of Appeal’s appellate jurisdiction.
[26]Kirk (2010) 239 CLR 531, 581 [100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2010] HCA 1.
Mr Walles has used the wrong procedure to invoke the Supreme Court’s supervisory jurisdiction. Instead of filing an application for leave to appeal to the Court of Appeal, he should have filed an originating motion for judicial review, under Order 56 of the Rules. Had he used the correct procedure, he would have been well outside the 60 day time limit prescribed by r 56.02(1) of the Rules and would still have required an extension of time.
I would not dismiss Mr Walles’s application as incompetent only because he has used the wrong procedure. If I were to be satisfied that he should be granted an extension of time and that his proposed grounds of appeal have some merit, I could direct that his application continue as a judicial review proceeding under Order 56 of the Rules. I therefore turn to those two questions.
Application for extension of time
Applicant’s submissions and evidence
Mr Walles’s application seeking an extension of time set out the following grounds for the application:[27]
[27]While Mr Walles referred to an ‘intervention order’ and an ‘IVO’ in his applications, I take him to have been referring to the final order.
1 Psychiatric Incapacity Preventing Timely Compliance
·The Applicant suffers from PTSD, severe depression, and anxiety, which impaired his ability to file the appeal within the statutory timeframe.
·Medical reports from Dr. Peter Farnbach and the Medical Panel confirm that the Applicant’s psychiatric condition substantially affected his legal capacity to respond within deadlines.
·The County Court failed to consider these exceptional circumstances, requiring judicial discretion under section 99 of the Personal Safety Intervention Orders Act 2010 (Vic).
2 Procedural Unfairness – Intervention Order Granted in Absence
·The Magistrates’ Court issued the [PSIO] against the Applicant in his absence, violating section 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), which guarantees the right to a fair hearing.
·The [PSIO] was granted based on unverified allegations, depriving the Applicant of an opportunity to contest evidence before restrictions were imposed upon him.
3 Mischaracterization of Alleged Breach – Wrongful Convictions
·The Magistrates’ Court wrongfully convicted the Applicant, failing to assess the intent behind the alleged communications that led to breach convictions.
·The alleged breaches stemmed from accidental communication errors, not deliberate violations.
·No credible proof was presented regarding the alleged threatening communication, further reinforcing a grave miscarriage of justice.
4 Judicial Discretion Required Under Section 99 of the PSIO Act
·The County Court dismissed the appeal strictly on timing grounds, ignoring the need to consider exceptional circumstances affecting compliance.
·Case law, including Austin v Dobbs [2019] VSCA 76, establishes that courts must assess psychiatric incapacity and procedural fairness when determining appeal rights.
·The County Court’s strict interpretation of procedural timelines contradicts established fairness principles, requiring intervention by the Court of Appeal.
In written submissions in support of his extension request, Mr Walles acknowledged that his appeal was filed outside the statutory timeframe, but submitted that exceptional circumstances warrant the Court’s discretion to allow an extension of time under s 99 of the PSIO Act. His written submissions corresponded with the grounds in his application:
2.1 Exceptional Circumstances – Psychiatric Incapacity Preventing Timely Compliance
·The Applicant suffers from PTSD, severe depression, and anxiety, conditions that impair his cognitive function and ability to meet legal deadlines.
·Medical reports from Dr. Peter Farnbach and the Medical Panel confirm that at the time the appeal deadline expired, the Applicant was suffering from psychiatric distress, substantially affecting his legal decision-making capacity.
·The County Court failed to exercise discretion by strictly adhering to procedural deadlines, ignoring case law such as Austin v Dobbs [2019] VSCA 76, which confirms that courts must assess psychiatric incapacity and procedural fairness when determining appeal rights.
2.2 Risk of Miscarriage of Justice Without Extension
·Strictly enforcing procedural deadlines without assessing the substantive fairness of the underlying rulings would result in an ongoing miscarriage of justice.
·The Applicant was denied his right to a fair hearing, further warranting a judicial reconsideration of his case.
2.3 Procedural Failures & Denial of Natural Justice
·The Magistrates’ Court granted [a PSIO] against the Applicant without his presence, violating section 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
·The procedural failure deprived the Applicant of the opportunity to challenge false allegations, reinforcing the need for appellate intervention even if the appeal is filed out of time.
Mr Walles made an affidavit in support of his applications, in which he deposed that the abuse he had suffered as a child at Yeshivah College between 1990 and 1992 had caused ‘severe mental and physical trauma, social isolation, and long-term depression’. He exhibited a number of medical reports to his affidavit. These were, in chronological order:
(a)A psychiatric report of Dr Peter Farnbach, psychiatrist, dated 19 November 2021, stating that Mr Walles presented ‘with what is very clearly post-traumatic stress disorder and associated depressive symptomatology’ and ‘an exacerbation of his PTSD and associated depression, and with a superimposed adjustment disorder with depressed and anxious mood and prominent angry, embittered ruminations’. In Dr Farnbach’s opinion:
Mr Walles’ symptomatology is at least moderate in severity. He does not have a current work capacity. His ability to enjoy previously-enjoyed activities is considerably less. He has difficulties with attention, concentration drive and motivation. He has significant suicidal ideation. Due to his intrusive symptomatology (i.e. nightmares and flashbacks) he phobically avoids situations which may provoke anxiety symptomatology.
Dr Farnbach recommended ‘very vigorous and appropriate combined psychiatric and psychological treatment’, and considered that such treatment would reduce Mr Walles’s symptom load and improve his level of functioning, capacity to enjoy life, and work capacity. However, he might never be capable of full-time work and would have some symptomatology life-long. In terms of degree of impairment, Dr Farnbach considered that Mr Walles met the 10% threshold required under the Wrongs Act 1958.[28]
(b)A certificate of determination of a Medical Panel comprising Associate Professor Alexander Holmes, psychiatrist, and Dr Julian Freidin, psychiatrist, dated 6 March 2023, certifying that the degree of impairment resulting from the psychiatric injury alleged by Mr Walles in his claim satisfied the threshold level.
(c)Reasons for the Medical Panel’s determination, also dated 6 March 2023, in which the Panel stated its opinion that Mr Walles ‘had an exacerbation of his pre-existing PTSD and an adjustment disorder with depressed and anxious mood, potentially caused in the manner alleged in the claim’. The Panel concluded that the degree of impairment resulting from the psychiatric injury alleged in the claim was permanent and was 10% or more, satisfying the threshold level.
(d)A report of Dr Jonathon Pinczower, general practitioner, dated 4 April 2024, advising that Mr Walles suffered from ‘a severe exacerbation of Post Traumatic Stress and Reactive Anxiety’, mainly due to ongoing litigation and delaying tactics from the defendants.
(e)A psychosocial evaluation dated 17 August 2024, prepared by Mr Robert Betancourt, counsellor and director of Living Better Therapy, which confirmed that Mr Walles ‘grapples with symptoms of depression and post-traumatic stress disorder’, which ‘have had a profound impact on his daily life, hindering his ability to function optimally and impeding his path to healing and recovery’.
(f)A report of Dr Pinczower dated 4 September 2024, stating that Mr Walles continued to suffer from post-traumatic stress disorder and heightened anxiety related to his legal matters, exacerbated by ongoing delays. Dr Pinczower added that he considered Mr Walles to be ‘cognitively of sound mind to give legal instructions’ and not in need of a legal guardian.
(g)A further report of Dr Pinczower dated 4 November 2024, giving his opinion that Mr Walles was suffering from post-traumatic stress disorder, and would continue to suffer each day until he has closure.
Respondent’s submissions and evidence
[28]Dr Farnbach confirmed this assessment in a letter of clarification dated 19 November 2021.
Ms Knoester opposed the application for an extension of time in which to file the application for leave to appeal, on the following grounds:
1. The applicant applies for an extension of time (EoT Application) to file an application for leave to appeal (Leave Application).
2. The applicant does not identify the source of his purported right to seek leave to appeal.
3. The true position is that the purported appeal is incompetent, by reason of the ouster of any right to appeal against the result of the appeal to the County Court by s 97 of the Personal Safety Intervention Order Act (the Act). That compels the refusal of any extension of time, because it would involve an exercise of a power that the Court does not possess.
4. Even disregarding that impediment, and assuming (contrary to the true position) that the application engages the general right of appeal granted by s 74 of the County Court Act, the EoT Application must be refused because the proposed Leave Application is foredoomed to fail, because the applicant offers no intelligible explanation for it being three and a half years out of time, and because of the prejudice it would occasion to the respondent.
5. First, the case that the applicant seeks to advance on the proposed Leave Application has no prospect of success. The Orders made by the learned County Court Judge were based upon the determination that she had no power to enlarge the statutory time limit for the filing of an appeal to that Court. That finding was not merely open, but was compelled by binding authority on the point: Austin v Dobbs [2019] VSC 355 at [43]–[48], Austin v Dobbs [2019] VSCA 296 at [98]. The application does not seek to challenge, still less give any reason to doubt the correctness of, that authority.
6. Second, the explanation for the delay posited in the materials filed in support of the application is entirely inadequate to justify a delay of the present magnitude.
7. Finally, the affidavit of Kartya Rose Gracer affirmed in opposition to the present application demonstrates the prejudice that would be caused to the Respondent if an extension of time were granted. The Respondent has been vexed by the Applicant’s conduct over many years. To remove the finality that has attended the proceedings for more than three years would cause her distress that could not [be] justified in circumstances where the application is so lacking in merit.
8. Those circumstances, individually and collectively, lead inexorably to the conclusion that the application for an extension of time is totally without merit.
9. The application should be refused on the papers, and a determination made pursuant to r 64.15(5)(a)(iv) of the Supreme Court (General Civil Procedure) Rules 2015.
Ms Knoester relied on an affidavit of Kartya Rose Gracer, her solicitor, which set out the procedural history of the matters the subject of Mr Walles’s applications, and exhibited relevant documents. According to that affidavit:
(a)On or about 18 October 2019, Ms Knoester applied to the Magistrates’ Court for a PSIO against Mr Walles. The application was supported by an affidavit sworn by Ms Knoester and documents annexed to her affidavit.
(b)On 29 October 2019, a magistrate made an interim PSIO against Mr Walles (‘interim order’). Mr Walles was not present at the hearing, not having been served with the application. The interim order was expressed to last until final order, unless varied or revoked, or the application was withdrawn.
(c)The application proceeded in the Magistrates’ Court at Moorabbin, and was contested by Mr Walles. He appeared at mention hearings on 26 February 2020, 27 May 2020, 22 July 2020, in January 2021, and on 4 March 2021. At the hearing on 4 March 2021, Mr Walles applied to have the matter struck out. The magistrate advised that the matter could not be summarily dismissed, and instead listed it for a contested hearing on 5 July 2021.
(d)In early 2021, Mr Walles commenced a proceeding in the Supreme Court, in which Ms Knoester was named as a defendant. In light of that proceeding, Ms Knoester’s lawyer requested an adjournment of the contested hearing listed for 5 July 2021.
(e)On 30 June 2021, the Family Violence Registrar at the Magistrates’ Court at Moorabbin sent an email to the parties, advising that the matter remained listed for a special mention on 5 July 2021, and noting that the contested hearing could not proceed on that date. As a courtesy, the Court advised that ‘if there is no appearance by either party, the Court has liberty to deal with the application according to law as it sees fit’. Mr Walles replied to this email, requesting the Webex link for the hearing on 5 July 2021. The Magistrates’ Court responded, confirming that the link had been provided in a separate email.
(f)Mr Walles did not appear at the special mention on 5 July 2021. After hearing evidence from Ms Knoester, the magistrate determined the matter and granted the final order. Among other things, the final order prohibited Mr Walles from stalking Ms Knoester, following or approaching her, publishing anything about her on the internet, and communicating with her other than through a lawyer. The final order was expressed to last until further order.
(g)On 19 July 2021, the final order was served on Mr Walles. He filed an appeal against the final order on 24 August 2021. On 4 November 2021, a judge of the County Court struck out the appeal.
(h)On 13 September 2021, police charged Mr Walles with breaching the interim order, by sending an email to Ms Knoester on 7 March 2021. In about May 2022, he was found guilty of the offence and fined.
(i)Mr Walles’s Supreme Court proceeding concluded on 6 March 2025. Mr Walles was engaged in that proceeding from its commencement in 2021 until its conclusion in 6 March 2025.
In addition, Ms Gracer deposed that the protracted intervention order proceedings to date have had significant financial and psychological impacts on Ms Knoester. The financial impacts included personally funding the proceedings. Ms Gracer estimated that, if Mr Walles’s applications were granted, Ms Knoester’s expenditure would exceed $80,000.
Consideration of application for extension of time
The time for filing an application for leave to appeal to this Court is, in most cases, within 42 days after the decision to which the application relates.[29] A judicial review proceeding under Order 56 of the Rules must be commenced within 60 days after the order in respect of which the relief or remedy is claimed.[30] On either view, Mr Walles commenced this proceeding long after the expiry of the relevant time limit.
[29]Supreme Court (General Civil Procedure) Rules 2015, r 64.05(1)(a) (‘Rules’).
[30]Rules, r 56.02(1)–(2).
Rule 64.08(1) of the Rules provides for an extension of time to file an application for leave to appeal. In the case of a judicial review proceeding, the Court may not extend the time limit fixed by r 56.02(1) except in special circumstances.[31] In both cases, considerations relevant to the exercise of the discretion include the length of the delay, any explanation for the delay, any prejudice caused by the delay, and the prospects of success of the substantive application.[32] No single consideration is necessarily determinative, and every case turns on its own circumstances.
[31]Rules, r 56.02(3).
[32]In relation to r 64.08, see Song v Commissioner of the Australian Federal Police [2019] VSCA 206, [20] (Kaye JA). In relation to r 56.02(3), see Lednar v Magistrates’ Court (2000) 117 A Crim R 396, 410–1 [137]–[146] (Gillard J); [2000] VSC 549, Mann v Medical Practitioners Board of Victoria [2002] VSC 256, [18]–[19] (Osborn J), upheld on appeal in Mann v Medical Practitioners Board of Victoria (2004) 21 VAR 429; [2004] VSCA 148.
In this case, the period of the delay is extraordinarily long. The County Court orders were made on 4 November 2021, and the application was filed on 27 April 2025, more than three years out of time.
The explanation given by Mr Walles for the delay is that he suffers from post-traumatic stress disorder, severe depression, and anxiety, which he says are conditions that impair his cognitive function and ability to meet legal deadlines. I am satisfied, based on the medical material summarised at [37] above, that Mr Walles suffers from post-traumatic stress disorder, depression, and anxiety as a result of the sexual abuse he was subjected to as a child, and that his symptoms were exacerbated during his dispute with Ms Knoester. I accept that these conditions impair Mr Walles’s capacity to work and his day-to-day functioning.
However, I am not satisfied that Mr Walles’s psychiatric conditions explain why he delayed more than three years before commencing this proceeding. I note the following in particular:
(a)During the period from early 2021 to March 2025, Mr Walles was not prevented by his psychiatric conditions from engaging in another Supreme Court proceeding involving Ms Knoester.
(b)None of the medical material expressed any opinion about whether, or to what extent, Mr Walles’s conditions affect his ability to engage in litigation.
(c)To the contrary, on 4 September 2024, Dr Pinczower certified that Mr Walles was cognitively of sound mind to give legal instructions.
In the circumstances of this case, extending time after such a long delay would cause significant prejudice to Ms Knoester. In addition to the financial burden of further litigation, the protection that she has under the final order would once again be in contention. The evidence that she filed in support of her application for a PSIO explained that she was fearful of Mr Walles and sought an order for the protection of her emotional and physical wellbeing. She has had the assurance of the final order since the appeal was struck out in November 2021, and has a real interest in maintaining that state of affairs.
On the other hand, refusing an extension of time would mean that Mr Walles is unable to contest the final order made against him on 5 July 2021. I do not consider that would result in any serious prejudice to him. Mr Walles did not identify any adverse impact that the final order has had on him during the last four years. He ceased his professional relationship with Ms Knoester in December 2018, and has had no apparent need to communicate directly with her since then. The other litigation between them is now at an end. If, contrary to my understanding, there has been some relevant change in circumstances that may justify varying or revoking the final order, Mr Walles could seek leave from the Magistrates’ Court to make that application.[33]
[33]PSIO Act, s 86.
In addition, for the reasons given below, I consider that the proposed appeal is totally without merit. Leave to appeal would have to be refused in any event.
Having regard to all of those matters, it would plainly not be just to extend time to allow Mr Walles to bring this proceeding. I refuse his application for an extension of time.
Merit of proposed appeal
Under s 14A(1) of the Supreme Court Act 1986, any civil appeal to the Court of Appeal requires leave to be obtained from the Court of Appeal. Section 14C of the Supreme Court Act provides that the Court of Appeal may grant an application for leave to appeal only if it is satisfied that the appeal has a real prospect of success.
The proposed grounds of appeal set out in the leave application are:
1. Procedural Unfairness – Intervention Order Granted in Absence
The Magistrates’ Court issued [a PSIO] without the Applicant present, depriving him of his right to defend himself, violating section 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The order was based on false testimony, without adequate verification of claims or procedural fairness.
2. Failure to Exercise Judicial Discretion in Exceptional Circumstances
The County Court struck out the appeal solely on timing grounds, without assessing the fairness of the original [PSIO] decision. The court failed to recognize the Applicant’s psychiatric incapacity, which prevented timely compliance with legal deadlines. Judicial discretion under section 99 of the Personal Safety Intervention Orders Act 2010 (Vic) should have been applied given the exceptional circumstances affecting legal compliance.
3. Mischaracterization of Alleged Breach – Wrongful Convictions
The Magistrates’ Court wrongfully convicted the Applicant for alleged breaches, failing to assess the intent behind the communications. The alleged threats were mischaracterized and unsupported by evidence, reinforcing a grave miscarriage of justice.
Applicant’s submissions
In his leave application, Mr Walles said that he sought leave to appeal because the County Court dismissed his original appeal solely due to timing, without assessing the procedural fairness of the final order, his psychiatric incapacity, or mischaracterisation of breach allegations. He argued that the judge’s Reasons contain critical legal errors, specifically:
(a)The judge dismissed the appeal strictly on jurisdictional grounds, without reviewing whether the Magistrates’ Court had fairly issued the final order. The final order was made in Mr Walles’s absence, which he said was procedurally unfair and a violation of s 24(1) of the Charter.
(b)The judge misinterpreted s 99 of the PSIO Act, ruling that it applies only to rehearings in the Magistrates’ Court. Mr Walles submitted that this interpretation failed to recognise that courts can consider exceptional circumstances when procedural fairness is at stake.
(c)The judge failed to acknowledge the exceptional circumstance of psychiatric incapacity as a valid reason for late filing. Mr Walles said that this contradicted a decision of this Court, to the effect that mental health factors must be considered in appeal matters.
These arguments were reiterated in Mr Walles’s written case.
Respondent’s submissions
Ms Knoester submitted that the proposed appeal was foredoomed to fail. To the extent that the various ‘legal errors’, ‘questions of law’, and ‘grounds’ were directed to the County Court orders, they resolved to a single complaint: that s 99 of the PSIO Act conferred a discretion on the County Court to extend time for filing a notice of appeal against the final order. Ms Knoester said that the judge was correct to find that s 99 was concerned with rehearings rather than appeals to the County Court or Supreme Court. She said that the true position is that there is no power to extend time for such an appeal.[34]
Consideration of merits of proposed appeal
[34]Referring to Austin v Dobbs [2019] VSC 355, [48]–[50] (Ginnane J); Austin v Dobbs [2019] VSCA 296, [98] (Whelan and Kyrou JJA).
The first and third proposed grounds of appeal are unrelated to the County Court orders that Mr Walles seeks leave to appeal. Proposed ground one is directed to the final order made by the Magistrates’ Court, and proposed ground three concerns Mr Walles’s conviction for breaching the interim order. Neither ground provides any basis for setting aside the County Court orders, whether on appeal or in a judicial review proceeding.
In relation to the second proposed ground of appeal, the judge was correct to hold that s 99 of the PSIO Act had no application to the matter, because it relates to an application for a rehearing. As the judge noted, the ‘court’ referred to in s 99 is the court in which the final order was made — in this case, the Magistrates’ Court.[35] An application to the Magistrates’ Court for a rehearing of a proceeding, under s 99 of the PSIO Act, is a separate and distinct process from an appeal to the County Court from a final order of the Magistrates’ Court, under ss 91 to 96. Mr Walles did not seek a rehearing of the proceeding in the Magistrates’ Court; rather, he sought to appeal the final order to the County Court.
[35]See [9] above. The word ‘court’ is defined in the PSIO Act to mean the Magistrates’ Court or, if the application is being dealt with in the Children’s Court, that court: PSIO Act, s 4 (definition of ‘court’).
Section 91 of the PSIO Act confers a right to appeal against a final order of the Magistrates’ Court. Section 93(2)(c) provides that a notice of appeal must be filed within 30 days after the day the relevant decision was made. The PSIO Act does not provide for any extension of that time limit, for any reason. This Court has previously held that there is no power to extend time for an appeal under ss 91 to 96 of the PSIO Act.[36] The judge was bound by that authority, and correctly applied it.
[36]Austin v Dobbs [2019] VSCA 296, [98] (Whelan and Kyrou JJA), upholding Austin v Dobbs [2019] VSC 355, [48]–[50] (Ginnane J).
The judge had no discretion to extend time and therefore no choice but to dismiss Mr Walles’s appeal. The PSIO Act did not permit consideration of his personal circumstances, the reasons why his appeal was not filed within the 30 day time limit, or the merits of his proposed appeal. There is no real prospect that Mr Walles’s argument to the contrary would succeed on appeal. Indeed, I consider it to be totally without merit.
Mr Walles did not aid his own cause by referring to several non-existent authorities in support of his applications.[37] Whether these ‘authorities’ were AI-generated or just made up, their inclusion in court documents was misleading, a waste of the Court’s time, and confirmed my conclusion that the proposed appeal had no merit.
[37]Application for leave to appeal, question 5 [3] (under the heading ‘Legal Errors in the County Court’s Ruling’), [4] (under the heading ‘Key Questions of Law Raised in the Appeal’), question 6 [4] (under the heading ‘Questions of Law Raised in the Appeal’); Applicant’s written case, [2.1] (third dot point), [4.4]; Applicant’s written submissions in support of application for an extension of time, [2.1] (third dot point); Applicant’s written submissions on competency, [3] (first and third dot points); Applicant’s legal authorities, all of the ‘case law’ listed. In each instance, the name of the authority was real, but the citation was that of a different authority. In no instance did the named authority support the proposition for which it was cited.
Disposition
The application for an extension of time in which to file an application for leave to appeal is refused. As a result, the application for leave to appeal must also be dismissed.
0
12
0