Hines v McErvale [2025] VSCA 152

1. The applicant's application for the PSIO was made pursuant to the provisions of the Personal Safety Intervention Orders Act 2010 ('PSIO Act'). In the application, the applicant was asked to state briefly why an intervention order was needed, and to give 'a brief outline of each incident including the date and place where it happened'. In response, the applicant provided a lengthy account, which commenced with a 'recent incident' alleged to have occurred on 16 March 2022. From the applicant's description, it appears that the respondent sent her a text complaining that the applicant's cat had attacked a cat belonging to the respondent's partner. As the applicant put it:

I went looking for our cat and approached [the respondent's] property where he invited us to go to the house and talk to [his partner] about the cat attack. [The respondent's partner] later admitted there were no marks, scratches, blood or injuries on her cat. As we walked towards the house [the respondent] began to close in on my space using his chest to press up against me. I asserted he breached my personal space. [The respondent] replied 'Whose space are you in?'. I replied 'You're in mine'. He then replied, 'Not here you're not'. [The respondent] notified [his partner] of my arrival as 'Bitch face is here ... '.

1. The applicant's 'brief statement' as to why an intervention order was needed then went on with a further 41 lines of text. For present purposes, however, it is not necessary to set out the whole of that text. It is sufficient to note that amongst these line of text are allegations that the respondent said, 'On my property I'll do whatever I fucking want, thank you very much!'; allegations of gunshots being heard to have come from the respondent's property; and allegations concerning the disappearance of various cats and of cats going missing at the respondent's home address.
2. On 29 June 2022, the Magistrates' Court made an interim intervention order,[5] which prohibited the respondent from, amongst other things, stalking the applicant or 'going to or remaining within the boundary' of the applicant's premises.
3. The application for a final PSIO came on for hearing in the Magistrates' Court on 24 November 2022. As I have already noted, it was heard by Bolte JR.[6] After hearing evidence from the applicant, and before the applicant was cross-examined, the judicial registrar accepted a submission made by counsel for the respondent that there was no evidence sufficient to satisfy s 61 of the PSIO Act, and thus no evidence upon which the court could make a final PSIO.
4. In accepting that submission, the transcript of the ruling (which appears to contain a number of errors, some of which are identified in the extract below) records the judicial registrar as having said:

The evidence I do accept is that there has been an exchange on 16 March 2022. An unremarkable exchange in my view, not one repeated at which occurred on the respondent's property (sic). I accept the respondent has been on all parts of his property as required as a farmer and has been viewed by the applicant. I accept that there has been gunshots (sic) in the area as required, and I find that both these events are without malice and due to the working environment at which the respondent works and lives.[7] He is a farmer. There is no witnesses (sic) for the application - for the applicant. Correspondence suggesting stalking and harassment that has been relied upon by the applicant is simply required documentation with malice as per the Act (sic).

And finally, police have not investigated any alleged breach. I conclude from this - or charged anyone. I conclude from this that there is no breach and no evidence to support even an investigation ... .

And therefore on the submissions made by the respondent's counsel that he has the court to rule prior to these matters going forward (sic). It is therefore clear on the evidence, or lack of it, before this court today that the application ... is refused due to insufficient evidence as per the requirements of s 61 of [the PSIO Act] that the court must be consider (sic) on the balance of probabilities. Your application is dismissed.

1. On 22 December 2022, pursuant to s 91 of the PSIO Act, the applicant filed a Notice of Appeal to the County Court appealing against the orders made by Bolte JR. While s 16K(3)(a) of the Magistrates' Court Act 1989 and r 16 of the Magistrates' Court (Judicial Registrars) Rules 2015 appear to contemplate a right of review of a determination of the Magistrates' Court constituted by a judicial registrar, which right of review is to be conducted by way of a hearing de novo by the Magistrates' Court constituted by a magistrate,[8] the applicant did not avail herself of this right before appealing to the County Court. As no submissions have been made by the parties concerning the appropriateness or otherwise of this course, I do not propose to say anything further about it in these reasons.
2. The applicant's appeal was made to the County Court because s 92 of the PSIO Act provides:

92 Court to which appeal must be made

The appeal must be made to -

(a) the County Court; or

(b) the Trial Division of the Supreme Court, if the court that made the relevant decision was the Children's Court constituted by the President of the Court; or

(c) the Court of Appeal, if the court that made the relevant decision was the Magistrates' Court, or the Children's Court, constituted by the Chief Magistrate who is a dual commission holder.

1. The appeal was listed for hearing on various days in 2023 but, on each occasion it was listed, it was adjourned. As I have already noted, on 1 February 2024, the matter came on for a directions hearing before Bales JR. During the course of that hearing, the applicant foreshadowed an application to transfer the appeal to the Supreme Court.[9] Because that application had not been filed before the commencement of the hearing, Bales JR did not deal with it. Rather, the judicial registrar made timetabling orders for the filing of further material, and fixed the appeal for hearing on 18 June 2024.
2. At 2:42 pm on 1 February 2024 (after the conclusion of the hearing before the judicial registrar), the County Court accepted for filing the applicant's application to have the appeal transferred to the Supreme Court.
3. On 15 February 2024, the applicant filed a notice in the County Court seeking to review the decision of Bales JR made on 1 February 2024.
4. On 9 May 2024, the applicant's transfer application and her application to review the decision of Bales JR came on for hearing before Judge Robertson. At the conclusion of that hearing, further timetabling orders were made which resulted in further written submissions being filed by the parties in the months that followed.
5. On 30 October 2024, in accordance with her Honour's Reasons published that day, Judge Robertson made orders confirming the orders of Bales JR and refusing the applicant's application to transfer the appeal to the Supreme Court.

1. After setting out the history of the matter, Judge Robertson noted that the applicant sought to have the appeal transferred pursuant to s 17 of the Courts (Case Transfer) Act 1991 ('Case Transfer Act'). Her Honour noted that s 16(1) of that Act provided:

(1) A proceeding may only be transferred under this Part if in the opinion of the designated judicial officers -

(a) the transferor court does not have exclusive jurisdiction to hear and determine it; and

(b) the transferee court has the appropriate skill, experience and authority to hear and determine it having regard to its gravity, difficulty and importance; and

(c) it is just and convenient that it be transferred.

1. After setting out s 92 of the PSIO Act, and summaries of the parties' submissions, the judge concluded that s 92 of the PSIO Act made it 'abundantly clear that the County Court exercises exclusive jurisdiction to hear and determine appeals of the nature brought by [the applicant]'.[10] Her Honour said that she was thus bound by the operation of the PSIO Act to refuse the transfer application.[11] Her Honour then said:

The application was lacking in merit from the start.[12]

1. Ultimately, her Honour confirmed the orders made by Bales JR, finding that the judicial registrar did not err in her decision on 1 February 2024. The judge concluded her Reasons by refusing the transfer application and making new timetabling orders (the previous timetabling orders having been 'superseded').[13]

1. On 10 February 2025, the proceeding came on for hearing before Judge Pillay. In orders made by his Honour on that day, Judge Pillay noted that the applicant had submitted documents, for filing in the Court of Appeal, seeking leave to appeal the orders of Judge Robertson and seeking a stay of those orders. His Honour made orders vacating a preliminary hearing which had been fixed for 17 February 2025, and refixed the proceeding for a hearing on 25 August 2025. Additionally, his Honour made a number of procedural orders designed to facilitate the hearing on 25 August 2025.

1. In relation to the orders of Judge Robertson, the applicant filed an application for leave to appeal, supported by a written case and list of authorities. In addition to that application, the applicant filed an application for a stay of Judge Robertson's orders. The stay application was supported by written submissions, a list of authorities and an affidavit affirmed by the applicant.
2. In relation to the orders of Judge Pillay, the applicant filed an application for leave to appeal, supported by a written case and list of authorities. In addition to that application, the applicant filed an application for a stay of Judge Pillay's orders. The stay application was supported by written submissions, a list of authorities and an affidavit affirmed by the applicant.
3. In relation to the application for leave to appeal from Judge Robertson's orders, the applicant advances the following proposed grounds of appeal:
   1. The Judicial officer erred having denied the transferee court access as to the consideration of the appellant's transfer application when the law stipulates, a proceeding may be individually transferred from one court to another under Part III of the Courts (case transfer) Act 1991. If the court in which it is pending so orders under s.21 of the Courts (case transfer) Act after it has been referred under s.17 of the Courts (case transfer) Act to the designated judicial officers of the two courts concerned in order to improve the efficiency in the administration of civil justice in Victoria.
   2. The Judicial officer erred having reached a predetermined conclusion that the transfer application pertaining to 'the appeal' s.61, s. 100 Q/ the Act was lacking in merit from the start; by refusing the same submissions tested in the Court's supervisory jurisdiction that found the respondent including third parties engaged in the prohibited behavior and stalking with malice an offence under the Act.
   3. The Judicial officer erred by applying an incorrect interpretation and application of 'exclusive jurisdiction' as to s. 92 of the Personal Safety Intervention Orders Act 2010 ("the Act"), preventing the transfer of the pending proceedings AP-22-1585 to the Supreme Court of Victoria; exceeding the jurisdictional powers of the transferor court, causing prejudice to the appellant.
   4. The Judicial officer erred by disregarding 1 (a) (b) of the Courts (case transfer) Act 1991 based on the facts of the case having failed the main purposes of s.1 (a), s. 2 (a) (c) of the Act in Hines v McErvale (Ruling) [2024] VCC 1537, pursuant to AAA v County Court of Victoria & Ors [2023] VSC 13, manufactured in contempt of the rule of law with intention to cover up the abuse of process preventing the course of justice.
   5. The Judicial officer erred by willful negligence failing due process in the delay of transcripts assisting with preparation for a miscarriage of justice that involves the same parties in these and parallel proceedings; then refusing to provide the accurate transcript of proceedings 24 November 2022; relisting the matter 30 October 2024 with fundamental errors in the transcript as to but not limited to adopted and doctored evidence.
   6. The Judicial officer erred by willful negligence refusing to correctly identify the same parties in these and parallel proceedings by definition s.61 (1) (b) (ii) of the Act; when Victorian police gained unauthorised access and disclosed the appellants information to Noel Kennedy upon his request due to having no evidence and intention to produce a false narrative in the FBP fitting JR Bolte's predetermined ruling 24 November 2024; the respondent including third parties engaged in the prohibited behaviour and stalking without malice.
   7. The Judicial officer erred refusing to apply the legal standard of proof washing her hands with Hines v McErvale (Ruling) [2024] CC 1537 (including the order as to costs) 30 October 2024 bringing the judiciary into further public disrepute. When ignoring counsels admissions as to the respondent having no other related criminal proceedings other than 7 February 2024 on foot; pursuant to Lucciano v The Queen [2021] VSCA where instructors had the distinct advantage of the related subject allegation 'stalking' accepted in the predetermined civil (mock) hearing 24 November 2022.
4. In relation to the application for leave to appeal from the orders of Judge Pillay, the applicant advances the following proposed grounds of appeal:
   1. Judge Pillay denied procedure fairness by ignoring the stay application filed 27 November 2024 pursuant to Supreme Court (General Civil Procedure) Rules 2015-REG 64.02 before the County court; reinforcing Juge Robertson appealed orders and ruling made 30 October 2024 that are before the Supreme Court for consideration.
   2. Judge Pillay erred failing to adhere to Supreme Court Act 1986 s.14A (1) by favouring [counsel for the respondent's] baseless submissions that the appeal has no prospects of success and the appellants application before the Supreme Court will fail. When ignoring factual contentions as to [the respondent's counsel] intentionally misleading the courts as to the same parties involved in these and related criminal proceedings.
   3. Judge Pillay erred in the fundamental of justice refusing the appellant's request for an accurate transcript of the appealed hearing 24 November 2022 when granting [counsel for the respondent's] requests in orders made 10 February 2025 that [counsel for the respondent] submits the Supreme Court will need anyway.
   4. Judge Pillay erred in the fundamentals of justice ignoring the appellant's submissions that the same parties involved in these and related criminal proceedings are on foot intended to execute a miscarriage of justice.
5. Before analysing the merits of the applicant's proposed appeals, it is necessary to set out the relevant provisions of the Case Transfer Act.

Courts (Case Transfer) Act 1991

1. The provision governing the applicant's application to transfer her appeal from the County Court to the Supreme Court was s 16(1) of the Case Transfer Act. At the risk of repetition, that section provides:

A proceeding may only be transferred under this Part if in the opinion of the designated judicial officers -

(a) the transferor court does not have exclusive jurisdiction to hear and determine it; and

(b) the transferee court has the appropriate skill, experience and authority to hear and determine it having regard to its gravity, difficulty and importance; and

(c) it is just and convenient that it be transferred.

1. The word 'court' is defined in s 3(1) to mean 'the Supreme Court, County Court or Magistrates' Court'; and the word 'proceeding' is defined to mean 'civil proceeding'. Section 3(2) of the Case Transfer Act provides:

For the purposes of this Act a court only has exclusive jurisdiction to hear and determine a proceeding if it is wholly or partly of a type that neither of the other courts has jurisdiction to hear and determine, whatever amount or value is either claimed or involved.

Proposed appeal from Judge Robertson's orders: analysis and conclusion

1. Central to the proposed appeal from Judge Robertson's orders is the correctness or otherwise of her Honour's conclusion that the applicant's appeal from the Magistrates' Court should not be transferred to the Supreme Court. Whether s 16(1) of the Case Transfer Act prohibits a transfer of the appeal from the County Court depends upon two related questions: first, whether the appeal is a 'proceeding' (defined as a 'civil proceeding') within the meaning of the Case Transfer Act; and secondly, if the appeal is a proceeding (civil proceeding) within the meaning of the Case Transfer Act, whether the County Court has 'exclusive jurisdiction to hear and determine it' within the meaning of s 16(1).
2. The question of whether the appeal is a proceeding within the meaning of the Case Transfer Act is not clear-cut. Various courts, in different contexts, have been required to construe the words 'civil proceeding' as they appear in different statutory provisions. In some of those cases, the words 'civil proceeding' have themselves been the subject of different statutory definitions.[14]
3. In Cheney v Spooner,[15] Starke J expressed the view that a civil proceeding 'include[d] any application by a suitor to a Court in its civil jurisdiction for its intervention or action'.[16] In Clark v Loftus,[17] Buchanan JA said that a civil proceeding 'is a court process by one person claiming relief from another or possibly in rem'.[18] In some cases, a proceeding has been held to be neither a civil proceeding nor a criminal proceeding under the legislation then being considered.[19] What is clear from the authorities dealing with the meaning of the expression 'civil proceeding' is that, in cases where there is no statutory definition of those words, much depends upon the statutory purpose and context in which the words are used.
4. In the circumstances of the present case, it is not necessary to resolve the issue of whether the applicant's appeal from the Magistrates' Court is a civil proceeding within the meaning of the Case Transfer Act. For present purposes, it may be assumed that the applicant's appeal is a proceeding to which the Case Transfer Act could have application. While the proposition is doubtful, it is not necessary to resolve the issue in this case because, on any view, Judge Robertson was plainly correct when she refused the transfer application.
5. Similarly, it is not necessary to analyse whether an appeal under the PSIO Act is a proceeding within the exclusive jurisdiction of the County Court. It is enough to observe that Parliament has determined that an appeal under the PSIO Act from the Magistrates' Court, not constituted by either the President of the Children's Court or the Chief Magistrate, must be made to the County Court. In such circumstances, even if the Case Transfer Act permitted the transferal of such an appeal from the County Court to the Supreme Court, one would expect that successful transfer applications would be rare.
6. In the present case, there is simply no basis upon which one might contemplate transferring the applicant's appeal to the Supreme Court. Judge Robertson was plainly correct when she observed that, 'The application was lacking in merit from the start'.[20] More specifically, there is simply no basis upon which this Court could or would interfere with a decision made on a question of practice and procedure involving the potential transferral of a proceeding between courts.[21] Even if one were to conclude that there was some error in the decision to refuse the transfer application (which I do not), there is no injustice in leaving her Honour's decision unreversed and permitting the appeal to be heard by the court specifically designated by the Parliament to hear the matter - the County Court.[22]
7. It follows that there is no substance in any of the applicant's proposed grounds of appeal relating to the orders made by Judge Robertson, and that the proposed appeal from her Honour's orders does not have any prospect of success. Accordingly, leave to appeal from her Honour's orders must be refused.

Proposed appeal from Judge Pillay's orders: analysis and conclusion

1. The orders made by Judge Pillay were orders made with respect to matters of practice and procedure. There is no basis upon which this Court could or would interfere with, or overturn, any of his Honour's orders. More particularly, notwithstanding the applicant's application for a stay pending the hearing of her application in this Court for leave to appeal from Judge Robertson's orders, there was no error in his Honour hearing the matter on 10 February 2025 and making orders facilitating the hearing of the appeal in the County Court. The lack of any merit in the application for leave to appeal mandated the continuance of the necessary management of the proceeding in the County Court unless and until any order was made by this Court granting a stay of the County Court proceeding. The probability of that occurring was zero.
2. As with the orders made by Judge Robertson, even if one were to conclude that there had been some error made by Judge Pillay in the making of his orders (which I do not), there is no injustice in leaving his Honour's orders unreversed and allowing the applicant's appeal from the Magistrates' Court to the County Court to proceed in accordance with the orders made in the County Court.
3. While there is no substance in any of the applicant's proposed grounds of appeal relating to the orders made by Judge Pillay, I should make specific reference to proposed ground 3 in which it is alleged that Judge Pillay 'erred in the fundamentals of justice refusing [the applicant's] request for an accurate transcript of the ... hearing [on] 24 November 2022' - the hearing at which Bolte JR dismissed the application for a final PSIO. In her written case supporting this ground,[23] the applicant made the following submissions in total:

Refusal to order accurate transcript

1. Does Noel Kennedy [the respondent's solicitor] forget the admissible evidence provided 10 August 2022; counsel and the court identified as 'doctored' recording and his request to the court to obtain a copy of proceedings 24 November 2022 for his client to use in any future proceedings, and the admission JR Bolte did not require any evidence whatsoever from the Respondent before removing interim orders made against him?
2. Does Noel Kennedy find issue where audio only exists with VPOL and the appellant and issue with the transcript dated 24 November 2022 provided by JR Bales 2 February 2024 as to the error 'adopted' in place of 'doctored' recording ?

1. These submissions are not easy to follow. That said, a transcript of the hearing before Bolte JR on 24 November 2022 forms part of the Court file in the applicant's appeal to the County Court.[24] Obviously, if reference is to be made, during the hearing of the appeal to the County Court, to what was said at the hearing before Bolte JR, then a copy of this transcript will need to be provided to the parties (if this has not already been done). Otherwise, there is nothing in this proposed ground of appeal or the applicant's submissions in relation to it which would permit this Court to set aside any of Judge Pillay's orders. Specifically, there is nothing in any suggestion that Judge Pillay 'refused [the applicant's] request for an accurate transcript'.[25] As to any dispute (if one exists between the parties) as to whether the word 'doctored' or 'adopted' was used during the hearing before Bolte JR, this should be capable of resolution by an inquiry of the transcript provider,[26] or perhaps from listening to a 'court provided disk'.[27]
2. As there is no substance in any of the applicant's proposed grounds of appeal relating to the orders made by Judge Pillay, and as the proposed appeal from his Honour's orders does not have any prospect of success, leave to appeal from his Honour's orders must be refused.

1. I will make orders refusing both applications for leave to appeal and, pursuant to s 14D(3) of the Supreme Court Act 1986, orders declaring them to be totally without merit.

1. In his written responses to each application for leave to appeal, the respondent sought the dismissal of the application for leave to appeal and an 'award of costs'. No basis for any award of costs was identified in the respondent's written material.
2. Section 111(1) of the PSIO Act provides that each party to a proceeding for a PSIO 'must bear the party's own costs of the proceeding'. Notwithstanding that provision, and in light of the respondent's request for costs, I will give the parties an opportunity to file any material and submissions they wish to make about the costs of these applications. Any application for costs made by the respondent, and any submissions on costs filed by the parties, will need to deal specifically with the construction and applicability or otherwise of ss 111(1) and 111(3) of the PSIO Act.

[1] A certified extract from the register of the Court records, 'Final Order refused'.

[2] Hines v McErvale [2024] VCC 1537 ('Reasons').

[3] See rr 64.15(2) and (5), and s 14D(1) of the Supreme Court Act 1986.

[4] As to the consequences of an application being determined to be totally without merit, see s 14D(3) of the Supreme Court Act 1986. For completeness, I should also note that the refusal of both applications for leave to appeal means that there is no basis upon which this Court could now stay any of the orders made in the County Court. Accordingly, the applications made by the applicant in this Court for orders staying the operation orders made by Judge Robertson and Judge Pillay must also be refused.

[6] While the transcript of the hearing refers to the presiding judicial officer as Mr M Bolte, Magistrate, it is clear from other documents filed in this proceeding that Mr Bolte was a judicial registrar at the time of the hearing. But see also Reasons, [8].

[7] The judicial registrar's reference to the events alleged by the applicant occurring 'without malice and due to the working environment at which the respondent works and lives' was obviously a reference to s 61(4) of the PSIO Act, which provides that a court must not make a final PSIO 'if satisfied on the balance of probabilities that the respondent engaged in the prohibited behaviour or stalking without malice ... in the normal course of a lawful business, trade, profession or enterprise ...'.

[8] Magistrates' Court Act 1989, s 16K(4)(a).

[9] While the applicant asserted that a transfer application was filed by her during the course of hearing before Bayles JR, Judge Robertson rejected that assertion for the reasons her Honour gave at Reasons, [17].

[14] See, for example, the definition of 'civil proceeding' in s 3 of the Civil Procedure Act 2010 , where it is defined to mean 'any proceeding in a court other than a criminal proceeding or quasi-criminal proceeding'. See also, s 4(2) of the Civil Procedure Act, which provides that that Act does not apply to proceedings under the PSIO Act.

[15] [1929] HCA 12; (1929) 41 CLR 532.

[17] [2005] VSCA 155.

[19] See, for example, Lednar v Magistrates' Court [2000] VSC 549; (2000) 117 A Crim R 396, 404-5 [94]-[95]; [2000] VSC 549. See also Sherman v Roads Corporation [2011] VSCA 149; (2011) 33 VR 119, 122 [12]; [2011] VSCA 149.

[21] Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260, [110]-[113]; Woodman v State of Victoria [2023] VSCA 169, [28]; Qu v Wilks [2023] VSCA 198, [67]; Kajula Pty Ltd v Downer EDI Ltd [2024] VSCA 236, [83]-[84]; and Wilks v Qu [2025] VSCA 135, [4].

[23] Although wrongly referred to as ground 2 in the applicant's written case.

[24] Indeed, I have quoted from it at paragraph [15] above.

[25] Cf proposed ground 5 of the application for leave to appeal from Judge Robertson's orders and the applicant's submissions on proposed ground 2 of that application.

[26] Victorian Government Reporting Service.

[27] It appears that such a disc exists: see paragraph 12 of the applicant's written case in support of her application for leave to appeal from the orders of Judge Robertson.