Gao v Zhang [2002] VSCA 19

2. This is an application for leave to appeal from an order made on 22 November 2001 in the County Court at Melbourne by his Honour Judge Hicks. That order was made on an appeal brought by the present applicant under s.20 of the Crimes (Family Violence) Act 1987 ("the Family Violence Act") against an intervention order made by the Magistrates' Court at Melbourne against him as defendant on the complaint of the present respondent.

5. This application has been before the court as presently constituted on 8 and 13 February 2002 when Mr. Gao appeared in person, unrepresented; and the history of the application thus far will be found recorded in the reasons for decision delivered on those dates. It is sufficient for present purposes to say that on 13 February the application was adjourned to today in order to afford the applicant an opportunity of filing an outline of submissions in response to the submission, first made that day by the respondent, that no appeal lies to the Court of Appeal in this case. The court's order made that day, and the explanation of it given at the time to the applicant by Phillips, J.A., made it clear that in default of the filing of such an outline by 4 p.m. on 27 February the application might be dismissed with costs without the need for any further appearance on behalf of the applicant or on behalf of the respondent. An outline was filed in time by the applicant. It is, however, difficult to understand and of little assistance on the question of the competency of the proposed appeal. It refers to possible revocation of the intervention orders pursuant to s.16 of the Family Violence Act and suggests also the possibility of our treating the application as one for judicial review. We cannot do that, nor can we order revocation. The submission also asserts that his Honour's order was obtained by fraud. But no separate proceeding to set it aside is on foot and in short there is nothing in the submission which helps upon the issue which we invited the applicant to address - that is, the power of this Court of Appeal to entertain an appeal from the order made in the County Court on 22 November 2001.

8. In consequence of the applicant's having filed an outline of submissions last week, the parties appeared again before us this morning, on the resumed hearing of the applicant's summons of 27 November 2001. This time Mr. O'Brien appeared for Mr Gao and we are obliged to him for his assistance. But, although he mentioned the possibility of some alternative remedy, in the end, on the question whether any appeal lay to this Court in the present circumstances, he felt constrained to concede that there was no answer to the submission of the respondent. We think that that concession was right; for, having in the meantime considered further for ourselves the question whether the proposed appeal lies, we are clear in our opinion that it does not.

11. Appeal is a creature of statute. Accordingly, it is necessary to find a statutory provision expressly or by necessary implication creating or conferring a right to appeal from a decision of a judge of the County Court on an appeal under s.20 of the Family Violence Act or from a class of decisions that includes such a decision. It is also necessary that jurisdiction be conferred by statute, expressly or by necessary implication, upon the Court of Appeal to hear such an appeal. Sometimes the one provision will perform the "double function" of conferring the substantive right of appeal and giving jurisdiction to hear the appeal.[1]

14. Here, s.10(1)(c) of the Supreme Court Act 1986provides:

"(1) Subject to this Act, the Court of Appeal has jurisdiction to hear and determine - . . . (c) all appeals from the County Court constituted by a Judge".

It is clear from the terms of that provision and particularly the use of the word "jurisdiction", not to mention the other subsections of s.10 and the heading to it, that this is simply a provision of the second kind, namely, one conferring jurisdiction on the Court of Appeal. It does not authorise the appeals but rather applies to appeals otherwise authorised.

19. The question, then, is whether any statutory provision, however expressed, gives a right of appeal to the Court of Appeal from an order of the kind made by his Honour Judge Hicks. Putting aside s.567 of the Crimes Act 1958 relating to appeals after conviction on indictment, the general and principal provision authorising appeals from the County Court to the Court of Appeal is s.74 of the County Court Act 1958. So far as material, it provides:

"(1) Any party to a civil proceeding who is dissatisfied with any judgment or order of the court may appeal from the same to the Court of Appeal ..."

By s.3(1) of that Act "court" is defined as meaning the County Court. It may be accepted that the proceeding before his Honour Judge Hicks was a "civil proceeding". But for the following reasons s.74(1) does not apply to his Honour's order.

24. The primary reason is that such an order is expressly excluded from the operation of s.74(1) by the somewhat labyrinthine legislation, as we now explain. Section 20 of the Family Violence Act, which conferred the right of appeal to the County Court exercised by the applicant because he was the defendant in the Magistrates' Court, provides in sub-s.(6) as follows:

"(6) The provisions of the Magistrates' Court Act 1989 or the Children and Young Persons Act 1989 (as the case requires) so far as applicable and with any modification and adaptations as are necessary extend and apply to appeals under this section."

Appeals from the Magistrates' Court to the County Court are dealt with in Subdivision 1 of Division 4 of Part 4 of the Magistrates' Court Act: ss.83 to 90 In terms Subdivision 1 and Schedule 6, which s.88 makes applicable, relate to appeals against sentencing orders in criminal proceedings, but s.20(6) of the Family Violence Act requires them to be modified in order to apply to an appeal authorised by s.20. By s.85 of the Magistrates' Court Act an appeal must be conducted as a re-hearing. By s.86(1), on the hearing of an appeal the County Court must (as his Honour did) set aside the order of the Magistrates' Court and may make "any order" which the County Court thinks just and which the Magistrates' Court made or could have made. (In fact his Honour made the order which the Magistrates' Court made.) Critically, s.86(2) provides:

"(2) An order made under sub-section (1) is for all purposes to be regarded as an order of the County Court, except for the purposes of section 74 of the County Court Act 1958."

Thus, for the purposes of s.74 of the County Court Act his Honour's order is not to be regarded as "an order of the County Court", that is, to use the precise expression in s.74(1), as an "order of the court". His Honour's order could not be treated as a "judgment" and so within the operation of s.74(1), both because it is, by virtue of s.86(1) of the Magistrates' Court Act, an "order" and not a "judgment" and because to treat it as a judgment would be to set at nought the evident purpose of s.86(2). The latter provision is clearly intended to preclude appeals beyond the County Court and is, in our view, effective to do so. That a specific provision is required if there is to be an appeal to the Court of Appeal from an order made by the County Court on an appeal to it governed by Subdivision 1 abovementioned might be said to be confirmed by the presence of Subdivision 2 (s.91), providing an appeal by leave to the Court of Appeal in the event that the County Court substitutes imprisonment for some other sentencing order.

31. Curiously, s.21 of the Family Violence Act, which authorises an appeal to the County Court by the complainant, contains, in sub-s.(4), a provision, of which no equivalent is found in s.20, precluding further appeal in these terms (so far as material):

"(4) The complainant may not bring any further appeal against any order made by the County Court ..."

But the existence of that provision does not, in our opinion, assist the applicant. Counsel for the respondent was unable to suggest any reason for that provision and our researches in commentaries on the Act and in Hansard have not provided any clue. When the Family Violence Act was enacted in 1987 the Magistrates' Courts Act 1971 was still in force, and the original s.20(6) and s.21(5) of the former Act provided that ss.75, 76, 81 and 82 of the latter Act should extend and apply to appeals under them respectively with any modifications and adaptations necessary. The applied provisions did not contain an equivalent to s.86(2) of the 1989 Act and although s.82 of the 1971 Act did make decisions of the County Court on amendment and other procedural matters final, that was a somewhat limited provision and perhaps the terms of the present s.21(4) are to be explained by the absence from the 1971 Act of a comprehensive equivalent of s.86(2) of the 1989 Act. Be that as it may, s.21(4) would now seem to be unnecessary in the light of the present s.21(5), which contains an exact equivalent to the present sub-s.(6) of s.20.

36. No doubt s.21(4), being a particular provision, is to be given operation according to its terms, but it only operates to prevent a complainant bringing a further appeal. Section 86(2) of the Magistrates' Court Act would operate to prevent a defendant from appealing against an order made by the County Court on an appeal by a complainant under s.21. In view of the very clear terms of s.86(2) it cannot be argued that the express mention in s.21 of one thing ( prohibition of a further appeal by the complainant) excludes the other ( prohibition of an appeal by the defendant) so that the otherwise obvious operation of s.86(2) is somehow qualified, if not indeed denied altogether, after an appeal by the complainant to the County Court under s.21. Even if that could be argued, that would have no effect on or in relation to s.20, which operates on an appeal by a defendant to the County Court and which contains no like provision to s.21(4). In short, then, s.86(2) of the Magistrates' Court Act, in its extension and application to appeals under s.20 of the Family Violence Act, expressly denies the operation of s.74 of the County Court Act to an order made on an appeal brought under s.20.

39. In so concluding we do not overlook that s.91 of the Magistrates' Court Act might suggest that s.86(2) is not directed at all to orders of the type here in question but rather to orders made by the County Court on appeals against sentencing orders made by the Magistrates' Court_._ Might it not be said that s.86(2) is designed only to provide that orders of that type are not to be treated as orders in a civil proceeding for the purposes of s.74 of the County Court Act , if only because they are in truth orders in a criminal proceeding? And if that were so, orders made on appeals under s.20, or indeed s.21, of the Family Violence Act, which are in truth orders in civil proceedings, would not be excluded from the application of s.74 of the County Court Act by dint of s.86(2), that then becoming one of the modifications subject to which s.86 is to extend and apply to such appeals (whether by virtue of s.20(6) or s.21 (5)). On that line of reasoning s.86(2) would not be called into play on an appeal to the County Court under s.20 of the Family Violence Act, and s.74 of the County Court Act would not be denied operation in relation to the order made by Judge Hicks.

42. There is, however, more than one difficulty with that argument. First s.20(6) (as indeed s.21(5) also) speaks of making such modifications "as are necessary" and the modification to which we have just referred cannot fairly be called "necessary": it depends upon a rather sophisticated distillation of legislative intent from other sections of the Act, which is certainly open to argument; the suggested legislative intent is far from plain. Secondly, according to s.20(6), the provisions of the Magistrates' Court Act "extend and apply" to appeals under s.20 "so far as applicable" and it cannot be said that s.86(2) is not "applicable" as it stands. The argument that s.86 (2) does not apply really means treating "so far as applicable" as meaning "so far as desirable"; for the view that s.86(2) should not apply to an order made on an appeal under s.20 of the Family Violence Act turns on policy. Not only is s.86(2) "applicable" in the sense of capable of being applied, but that is the clear natural meaning and effect of the legislation. When the injunction contained in s.20(6) is obeyed, s.86(1), read with necessary modifications, commences, "On the hearing of an appeal under section 20 of the Crimes (Family Violence) Act 1987", rather than (as it actually does), "On the hearing of an appeal under section 83 or 84". The result is that the order made on an appeal under s.20 of the Family Violence Act is one authorised by s.86(1) of the Magistrates' Court Act and thus an "order made under subsection (1)" within the meaning of s.86(2). Section 86(2) therefore applies with the result that s.74 of the County Court Act does not - and there is then no warrant in s.74 for an appeal to this Court from the order made by the County Court on the appeal to it under s.20 of the Family Violence Act.

45. That is enough to dispose of this application, but it is at least of interest to refer to some similar situations under this legislation for the sake of comparison. For example, if the original intervention order had been made by the Children's Court constituted by the President of that court, the appeal under s.20 of the Family Violence Act would, by virtue of sub-s.(1) as amended by the Children and Young Persons (Appointment of President) Act 2000, have lain to the Trial Division of the Supreme Court. In such a case it may well be that s.20(6) of the Family Violence Act would apply (with any necessary modifications) s.197(5) and (5A) of the Children and Young Persons Act[2], which in turn would apply (with any other necessary modifications) the above-mentioned Subdivision 1 in the Magistrates' Court Act with the result that s.86(2) of the Magistrates' Court Act would, after double modification, require the order made on that appeal not to be regarded as an order of the Trial Division for the purposes of s.17(2) of the Supreme Court Act. (It is s.17(2) which gives a right of appeal from a "determination"[3] of the Trial Division unless otherwise expressly provided.) And a slightly less convoluted legislative chain would seem to render s.74(1) of the County Court Act inapplicable to an order on appeal to the County Court under s.20 of the Family Violence Act where the original order was made by the Children's Court pursuant to s.3A of the Family Violence Act, just as it is where the original order is made by the Magistrates' Court. If the foregoing be correct (and we do not have to decide it finally), there is uniformity in allowing no further appeal when a defendant appeals under s.20, whatever the court that made the intervention order and however it was constituted.

48. There might be another reason too why, quite independently of the effect of s.86(2) of the Magistrates' Court Act, no appeal lies here to the Court of Appeal by virtue of s.74 of the County Court Act. The order of Judge Hicks was made in the appellate jurisdiction of the County Court, and it is possible that s.74(1) is limited to appeals from judgments or orders of the County Court in its original jurisdiction. Certainly the immediate predecessor of the present s.74(1) was held to be so limited: Crimes Compensation Tribunal v. Stratton[4]; State Superannuation Board of Victoria v. O'Connor[5]. At the time of those decisions s.74(1) read:

"(1) Any party to an action or matter who is dissatisfied with any judgment or order of the court or a judge, not being an order for commitment, may appeal from the same to the Supreme Court...".

The word "action" was defined in s.3 of the Act as including suit and meaning "every civil proceeding in the court which may be commenced as prescribed by summons", whilst "matter" was so defined as including "every civil proceeding in the court commenced otherwise than by summons and whether in an action or not". Those definitions were significant, if not critical, for the conclusion that s.74 was confined to appeals from the original civil jurisdiction of the County Court. The words "an action or matter" were replaced by "a civil proceeding" by the County Court Amendment Act 1989 as part of the substantial procedural changes then adopted, and it might be said that an appeal to the County Court brought by a defendant under s.20 of the Family Violence Act falls within the amended s.74(1) as being a civil proceeding, since the proceeding at first instance was a civil proceeding. Nevertheless, we know of nothing in the Parliamentary debates to suggest that the change of language was intended to reverse the effect of the decisions mentioned.[6] But there is no need for us to express any final view on the ambit of s.74 of the County Court Act generally; suffice it for present purposes that by virtue of s.86(2) of the Magistrates' Court Act, as extended and applied by s.20(6) of the Family Violence Act, s.74 is expressly denied any application to an order made on an appeal by a defendant to the County Court under s.20 of the latter Act.

53. No other possible statutory source of a right to appeal from the order of Judge Hicks has been suggested to us and we are unaware of any. It follows that this application for leave to appeal must be dismissed, as the appeal would be incompetent - and dismissed with costs, including the costs of 8 and 13 February.

56. This morning respondent's counsel applied to us for the costs of this day on a solicitor and client basis, on the ground that the parties were brought to court unnecessarily, given the clear indication by the Court on 13 February that no further appearance was needed if the applicant had no further submission to make on the right of appeal. No further submission was made this morning on that question, nor (as we mentioned earlier) was the outline which was filed of any assistance. It appears from an affidavit filed by the respondent on the matter of costs that the outline was probably filed by Mr. Gao without reference to Mr. O'Brien. But, however that may be, the outline of submissions was filed on behalf of the applicant and it did precipitate an unnecessary appearance today. We agree that in those circumstances the applicant should pay the costs of this day on a solicitor and client basis.

[1] Byrnes v. The Queen [1999] HCA 38; (1999) 199 C.L.R. 1 at 22-23 and 28 and cases there cited.

[3] Necessarily treated as including an order.

[4] [1984] VicRp 80; [1984] V.R. 1015 at 1017.

[5] [1985] VicRp 41; [1985] V.R. 380.

[6] We note, without further comment, that in Transport Commission v. Nugent [1996] VicRp 5; [1996] 1 V.R. 37 at 43 Smith, J., in whose judgment the other members of the Appeal Division agreed, appears to have treated the new s.74(1) as relating only to appeals from judgments or orders in the original jurisdiction of the County Court.