Hunter v Magistrates' Court & Aulich [2002] VSC 362

Hunter v Magistrates' Court & Aulich [2002] VSC 362 - VSC 2002 case summary — Zoe

[8]

"(a) The extension of the Intervention Order against the Plaintiff for a period of 10 years without the hearing of any evidence. (b) The refusal of an Intervention Order in favour of the Plaintiff without hearing any evidence. (c) In relation to the decision of the First Defendant made on 17 July 1998 to grant the Second Defendant's application to extend the Intervention Order made against the Plaintiff on 27 June 1997, and the entry of the First Defendant's orders thereto: (i) the decision was contrary to law being a decision: (A) made in the absence of consent and unsupported by admissible evidence; (B) the Second Defendant/Applicant having failed to discharge its legal and evidentiary burden so as to sustain: a. the decision of the First Defendant to grant the Second Defendant's Application for extension of the intervention order against the Plaintiff; b. the decision of the First Defendant to extend the Second Defendant's intervention order against the Plaintiff for a period of ten years; c. the decision of the First Defendant to vary the prohibitions expressed in the Second Defendant's prior intervention order against the Plaintiff, of its own motion, and in the absence of application, by deleting a prohibition expressed in the prior order and by adding the words and with the express approval of this court as a condition to a prohibition appearing in the prior order. (ii) The decision of the First Defendant to extend the effective period of the intervention order made against the Plaintiff for a period of ten years, and to vary the prohibitions expressed in the prior order was so unreasonable as to be contrary to law; (iii) The decision of the First Defendant to permit the parties to negotiate their client's positions and the terms of possible orders which the Court might make on the then current applications, in chambers, compromised the proper conduct of the proceeding, and in permitting such conduct the First Defendant erred in law. (iv) The issue by the Registrar of the Ringwood Magistrates' Court of a certified extract of order purporting to contain or effect an amendment or variation to orders previously certified by the court and made by the First Defendant, was ultra vires the Registrar and occurred in circumstances where the First Defendant was functus officio."

[51]

(a) The Decision Sheet

His Worship followed the usual procedure of completing a "Decision Sheet". It contained a number of boxes to be ticked, including "By Consent" boxes if the order was made by consent. It may be said to be the best evidence available as to whether the order of his Worship was by consent. His Worship entered the date to which the order would operate (1/7/2008), deleted the order against "assaulting etc" the family member and added to the prohibition on complaints to the police the words "and with the express approval of this Court". He did not tick any "By Consent" boxes.

(b) Backsheet to the Brief of Mr Willcox

Mr Willcox endorsed his backsheet as follows:

"Coram: Smith

Contra: James

Order

Intervention Order in favour of Aulich enclosed. Aulich gave undertaking to the Court that he would not approach the residence of Hunter unless on police business. His Worship explained to Hunter that at the last hearing there were no grounds for an order to be made in her favour, but in an attempt to separate the parties and to allow a "cooling off period" mutual orders were made. That has not been successful. This time there were no grounds for an order in favour of her. Aulich, however, was in a different position but not overly so. Hunter's complaints to E.S.D. were causing extreme difficulties in Aulich's employment. If there are to be further complaints by Hunter they are to be addressed to his Worship who will allow or disallow the complaint procedure."

I accept Mr Willcox's evidence that his practice was, when an order was made by consent, to record that fact when noting the orders made on his backsheet and thus the absence of such an entry supports the conclusion that the order was not made by consent.

(c) Record of Ms James

It appears from the evidence that Ms James's original notes of the hearing before his Worship could be produced, but they have not been produced. She did, however, write on 27 July 1998 (Exhibit A9) to Sergeant Neal of the Ethical Standards Department of the Victoria Police, who was carrying out an investigation into Mr Aulich's conduct. With her letter she enclosed a copy of the order against Ms Hunter. What form the copy took is not known. In her letter she informed Sergeant Neale about the hearing on 17 July 1998 as follows:

At a glance

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Judgment (93 paragraphs)

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Legislation Cited (16)

Cases Cited (1)