Guss v Sullivan [1998] VSC 64

Supreme Court of Victoria|1998-09-11|Before: Byrne, J.

PRACTICE AND PROCEDURE - intervention order - appeal to County Court - security for costs of appeal. jurisdiction of County Court to order - jurisdiction of County Court matter to order.

In late 1996 the applicant, Marilla Suzanne Guss, met the respondent, Brendan Dominic Sullivan. For a period of a few months only they enjoyed a relationship. For reasons which are not relevant, the couple were unable thereafter to go their separate ways. These difficulties led to their attending the Magistrates' Court of Victoria at Prahran on Friday, 8 August 1997, each seeking against the other an intervention order pursuant to the s.4. The Magistrate, Mr Levine, made an order on the application of Mr Sullivan (case No. K01935350) but refused that of Ms Guss (Case No. K01936343). On the same day, she appealed to the County Court pursuant to s.21 against the refusal of her application and pursuant to s.20 against the making of the intervention order in favour of Mr Sullivan.

Four days later on Tuesday, 12 August 1997 Ms Guss returned to the Prahran Magistrates' Court and obtained ex-parte an interim intervention order against Mr Sullivan pursuant to s.8 (Case No. K01962759). In due course her second application for a s.4 order was heard before the court constituted by Mr Magistrate Walter on 26 and 27 August. At the conclusion of the hearing, the Magistrate refused her application and ordered that she be not at liberty to make a further application without leave of the court. Further, he ordered that she pay Mr Sullivan's costs which were fixed at $1,563.10. Such an order for costs may be made only where the Magistrate decides that exceptional circumstances warrant it: s.14A. Ms Guss has appealed to the County Court against this order also.

It seems that the difficulties of the parties did not stop there. Ms Guss on 20 November 1997 pleaded guilty to stalking charges involving breaches of the intervention order and was sentenced to four months' imprisonment which was wholly suspended for 18 months. She was placed on a community based order requiring her to undergo psychiatric assessment and treatment. She has appealed to the County Court against this sentence also.

Ms Guss has been charged with further breaches of the intervention order. She has been released on bail pending the hearing of these further charges on condition that she seeks psychiatric counselling.

These unhappy events provide the background to the proceeding before the court which is an application by Ms Guss for leave to appeal against an order of Master Patkin in the County Court made on 2 April 1998 whereby the Master ordered that the applicant provide $3,500 security for the costs of the respondent of the appeals against the three orders made under the Crimes (Family Violence) Act 1987 and that, in default, the appeals be stayed. He also ordered that she pay the costs of the application before him which he fixed at $1,500. I should add that the order was made after a hearing which I was told lasted over five days. A party who is aggrieved against an order of a County Court Master may appeal to this Court only by leave: R. 58.02. I approach the application for leave on the same basis as an appeal against an interlocutory order of a discretionary nature of a single judge of this Court to the Court of Appeal. It has been said that an applicant in such a case must show that the order was clearly erroneous and further that the appellant would suffer a substantial injustice if the order were permitted to stand: Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431 at 440. On the other hand, the High Court in Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177 preferred less rigid criteria. Nevertheless, the question of injustice to the would be appellant is a relevant and necessary consideration.

In this case, it was submitted that Ms Guss should be permitted to appeal against the Master's order on the basis that it was made without jurisdiction and, further, that it ought not, as a matter of discretion, to have been made at all. I refused leave to argue the second point. Accepting that jurisdiction existed I do not see any injustice to Ms Guss that she be required to establish a modest fund of $3,500 for a relatively short period, till 11 May 1998 when the appeals were due to be heard. In the event that the appeals succeed or, in the event that the discretion under s.14A is not exercised adversely to her, she will have the money returned to her. Her occupation is given as marketing manager. There was no evidence that compliance with the Master's order would prevent the appeals from going ahead.

The proceeding before me, therefore, proceeded on the question of jurisdiction. First, it was said that the County Court had no jurisdiction to order security in a civil case except pursuant to Rule 60.02 and no jurisdiction at all in a criminal case. Second, it was said that, if jurisdiction existed, the Master could not exercise it. Counsel for Mr Sullivan argued that the application under s.4 was in fact a civil proceeding in the Magistrates' Court and that an appeal from an order made or refused under that section is likewise a civil proceeding in the County Court. In submitted that in any event, the power to make the order was a power incident to the power of the County Court to protect its own process from abuse.

It was conceded on behalf of Ms Guss that the County Court, notwithstanding that its jurisdiction is statute based, has as an implied incident to that jurisdiction the power "to stay or dismiss such cases brought to it as are frivolous or vexatious or an abuse of procedure": Duncan v Lowenthal [1969] VicRp 21; [1969] VR 180 at 182, per Winneke CJ, Smith, Gowans JJ. In the context of an appeal this jurisdiction may be invoked to protect a litigant from frequent and harassing appeals: Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310 at 313. Accepting that such a power to stay exists, it must follow that the court has the power, in the appropriate case to do so upon such terms as it sees are necessary to prevent such an abuse of process.

It may be thought that such a power might exist to protect the court from abuse of process in criminal cases as well as in its civil jurisdiction. One argument put on behalf of Ms Guss depended upon such a distinction and upon the categorisation of a s.4 application for an appeal from an order made in such an application as criminal. That such application and appeal is a civil proceeding is well established by authority: Fisher v Fisher [1988] VicRp 93; [1988] VR 1028; Gunes v Pearson (unreported, McDonald J, 31 October 1996, BC 9606749); Kay v Kay (unreported, Byrne J, 24 October 1997, BC 9706059). Even so, and allowing that the court may be more cautious in exercising this power in a criminal case, there is no reason in principle to deny the existence of that power even in those cases.

Next it was argued that in the case of a civil proceeding the only circumstances in which security for costs may, as a matter of jurisdiction, be ordered against a natural person are those set out in Rule 62.02. The short answer to this is that it, too, is contrary to established authority: Rajski v Computer Manufacture & Design Pty Ltd [1982] 2 NSWLR 443; Nord v Truitt (1987) AIPC 37,934 at 37,938-9, per Ormiston J.

It was submitted next that there is, under ss.20 and 21, an unqualified right to appeal against the decision of the Magistrates' Court to make or to refuse to make an intervention order as the case may be. In these circumstances, the express right of appeal cannot be defeated by some implied power to the contrary. I am not persuaded that the power to stay or to summarily dismiss an appeal which is an abuse of process is itself a denial of that right. Any person has the right to commence a proceeding in the County Court. The acknowledged existence of the power of that court to protect itself from abuse of process is not inconsistent with that right. I conclude that the order from which the appeal is sought is within jurisdiction of the County Court.

Finally, it was put that, even if the County Court was empowered to make an order of the kind here in question, this jurisdiction is exercisable only by a judge and not by a master. Under Order 77A of the County Court Rules a master is empowered "to exercise all the powers and authorities of a judge under these rules, the Act or any Act". This submission misconceives the jurisdiction which the Master exercised in this case. Unlike a common law court of unlimited jurisdiction the County Court has no jurisdiction other than that conferred by statute, including s.49 of the County Court Act 1958. This jurisdiction includes not only that conferred in express terms by the statute but also that which is to be implied from these terms. This power, which may be exercised by a master, includes the power which supports the Master's orders for security.

As I have mentioned, leave has not been granted to appeal against the Master's exercise of the jurisdiction which I have held him to possess. It is not therefore necessary that I enter upon a consideration of the question whether this was one of the rare occasions when a natural person bringing an appeal to the County Court should be turned away or turned away on terms that security be lodged.

1. Leave to the applicant to appeal against the order of Master Patkin made on 2 April 1998, but only on the ground that the Master lacked jurisdiction to make the order.

3. Applicant to pay the taxed costs of the respondent including reserved costs and the costs of transcript.

Following argument as to costs, his Honour made the following order in lieu of proposed order 3:

3. Costs of the respondent, including reserved costs and costs of transcript be costs of the respondent in the County Court appeal..

(Family Violence) Act 1987

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