MM (a pseudonym) v Victoria Police [2024] VCC 1620

1. An application was made by Victoria Police, the respondent to this appeal, for a Family Violence Intervention Order ("FVIO") on 2 November 2023 in respect of the AFM and the two children.
2. The Magistrates' Court granted an interim FVIO for the protection of the AFMs on 15 November 2023.
3. At the mention hearing listed for 30 January 2024, the respondent advised that it was withdrawing the application and sought an adjournment to enable the AFM to file her own application. His Honour Magistrate McNamara granted the adjournment and stated:[3]

"If the matter is going to be withdrawn on the next occasion, please advise in advance in order that the respondent be excused. If the respondent is dragged back for no good reason, then I think he would be entitled to (inaudible)."

4. On 5 March 2024, Senior Sargeant Adam Casselton, on behalf of Senior Constable Hassan Ali, filed an application for leave to withdraw an application.
5. The appellant alleges that about 10:00pm on that date, Senior Constable Hassan Ali contacted him for the purposes of conducting a risk assessment in respect of the FVIO.
6. At the mention hearing on 7 March 2024, the respondent formally withdrew the FVIO application. The appellant indicated his consent to an interim order, without admissions if the AFM were to file a fresh application and if the children were removed as AFMs. He did not agree to the AFM being substituted as the applicant instead of Victoria Police.[4] He did not consent to a final order and requested that the matter be heard at a contested hearing.
7. The appellant sought costs against Victoria Police on 7 March 2024. His application for costs was refused by the Magistrate.[5]
8. On 4 April 2024, the appellant filed the appeal to this Court submitting that there was an error of law, fact or discretion in relation to the decision to refuse costs.
9. His Grounds of Appeal were described as follows:
10. "I want to appeal for legal costs incurred by me during these intervention order proceedings. That were viscously (sic) and frivolously brought against me by members of Melton Police Station. This court case was unnecessarily lengthened without any proper evidence or backings in Magistrates' Court. I will provide further evidence in my affidavit, where I will try and prove that due diligence was not done, and delaying tactics were used in Magistrates' Court against me to waste my time, money, efforts."

1. Section 154(1) of the Family Violence Protection Act 2008 (Vic) (FVPA) provides:

(1) Each party to a proceeding for a family violence intervention order under this Act or a proceeding for the variation, extension or revocation of a recognised DVO must bear the party's own costs of the proceeding.

(a) the court may make an order about costs if the court decides that exceptional circumstances warrant otherwise in a particular case; or

(b) if the court is satisfied in a particular case that the making of any application under this Act was vexatious, frivolous or in bad faith, the court may award costs against the applicant.

1. An appeal to this Court under the FVPA is to be heard in accordance with the principles stated by His Honour Justice Dixon in AAA v County Court of Victoria & Ors ('AAA')[6]. Legal, factual or discretionary error in the Magistrates' Court's decision must be demonstrated to engage the jurisdiction of this Court. Such error may be identifiable in light of all the new evidence before the appellate court at the time of appeal, an examination of the transcript of the proceedings before the Magistrates' Court and any reasons for decision.
2. I have regard to established legal principles in making an assessment whether the Magistrate made a legal, factual or discretionary error.

1. This involves a mistake in the application or interpretation of the law. In Byrne v Owners of Ceresa Apartments Strata Plan 55597 it was held that:[7]

"If the Tribunal makes a legal error in the way in which it undertakes its fact finding, or a legal error in the way in which it construes that statute which it is applying in a particular case, or some other reasoning, then an appeal lies to correct that legal error."

1. This applies as to errors in the findings of fact. If the trial judge's findings are inconsistent with the facts which are "incontrovertibly established by the evidence" or if the findings are "glaringly improbable" then an appellate court can intervene. Just because an appellate court considers that the probabilities of the case are against that finding of fact, this does not result in factual error.[8]
2. The majority of the High Court in Lee v Lee[9] summarised the legal principles with respect to factual errors:

"A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge."

1. If the evidence reveals that the trial judge made an error in the exercise of their discretion, the appellate court may exercise its own discretion on that issue or aspect.
2. Dixon, Evatt and McTiernan JJ in House v The King[10] identified the following legal principles in respect of discretionary errors:

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion to which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

1. The appellant submitted that the Magistrate made the following errors:

Misconstruction of the assertions / imputations by the Magistrates' Court. The

Prosecution was negligent in conducting this matter. The Magistrates' Court failed to hear (the appellant's) evidence fully/properly.

Denial of procedural fairness by the Magistrates' Court. The court case was unnecessarily lengthened in the Magistrates' Court without proper evidence. Delaying tactics were used and due diligence was not met by the Prosecution.

Justification finding of costs refusal by the Magistrates' Court were contrary to the evidence presented. The application against (the appellant) was made without a standard of proof. Ferocious, frivolous application was brought forward towards (him).

1. The appellant submitted that the delay in the withdrawal of the application on 7 March 2024 wasted his time and money and it significantly hampered his ability to perform his professional work and life. He further submitted that the police, despite informing the Magistrate on 30 January 2024 that the application would be withdrawn, and the AFM would file a new application, "harassed and intimidated" him. On 5 March 2024, Victoria Police took 5 weeks in making the application to withdraw when it had already stated it would withdraw at the mention hearing on 30 January 2024 and the Magistrate warned Vicotria Police that it may face a costs order.
2. He submitted that the Magistrate failed to recognize that the Victoria Police application was made in bad faith; without any proper evidence and baseless accusations and that the Police victimised him by referring to irrelevant personal details.
3. The appellant submitted that the Further and Better Particulars ("FBP"), prepared by Senior Constable Hassan Ali, signed and dated 3 December 2023 and which is exhibited to his Affidavit in Support of Submissions by Victoria Police sworn 23 July 2024[11] ("the Ali FBP") is not a true copy of the FBP he received from the Sunshine Magistrates' Court on 3 January 2024.[12]
4. The appellant identified the following differences in the two documents:

(a) The FBP he received on 3 January 2024 (the FBP received by the appellant) only has 18 paragraphs, whereas the Ali FBP has 21 paragraphs.

(b) The FBP received by the appellant has a filing date of 21 December 2023 whereas the Ali FBP has no filing date.

(c) Paragraphs 15(b) and 16 of the FBP received by the appellant are inconsistent as paragraph 15(b) states that "the AFM did not wish to provide a statement in relation to current or past incidents at the time" and paragraph 16 states that "on 20 December 2023, the AFM provided a statement to Police. This statement is attached to these Particulars, marked Annexure B."

(d) Paragraph 15(b) of the FBP received by the appellant states that no criminal offences were identified by Police as a result of the abovementioned incidents whereas paragraph 19 of the Ali FBP notes that the respondent has not been charged for offences arising out of the current incident.

(e) Paragraph 17 in each document is different as Victorian Police hold the position that a Family Violence Intervention Order is necessary to ensure the AFM is protected in the FBP received by the appellant and in the Ali FBP, paragraph 17 states: "The AFM stated that she wants the Intervention Order in place to protect herself and her children and does not want the Police to proceed with criminal charges."

(f) There is no equivalent Paragraph 13 under the heading 'History of Unreported Alleged Incidents' in the Ali FBP.

(g) The wording of the paragraphs under the heading CONTESTED HEARING in both documents are different.

1. The appellant submitted the differences in the two documents demonstrated "that there is error made in providing facts and law rules are not properly followed in preparing of documentation". Moreover, the evidence he could present to the Magistrate on 7 March 2024 was limited because he was unaware there were two versions of the document.
2. The appellant further complained that he agreed to an Interim Intervention Order on 7 March 2024 following the filing of the fresh application by the AFM which is confirmed by the Court hearing transcript[13], however the Magistrate failed to acknowledge his consent, which affected him in both his Family Court case and in the FVIO application.
3. There was no advance notification of withdrawal of the application given to him by the Police, and he was dragged back to court again on 7 March 2024, wasting 5 weeks and adding to his stress, anxiety, depression and worry. He maintained that this demonstrated that legally and factually the matter was not properly heard by the Magistrate on that day. The Magistrate on 30 January 2024 had nodded his head in affirmation that costs would be awarded to him if the matter progressed further, but the Magistrate on 7 March 2024 said that the appellant had misread the nod. The appellant acknowledged that the Magistrate said to him that he had misread the nod.

1. The respondent submitted that there is no evidence or material put before the court to demonstrate that the Magistrate's findings were 'glaringly improbable' or 'contrary to competing inferences.'
2. In relation to the first ground of appeal, the Magistrate applied the correct test for granting costs in the family violence jurisdiction and he correctly concluded that the appellant had not made out exceptional circumstances to warrant an order for costs.
3. The appellant failed to identify any evidence he relied on to support his submissions. He further failed to demonstrate what assertions he claims the Magistrate misconstrued when coming to his decision not to grant costs.
4. In relation to ground two, the respondent submitted that the application was formally withdrawn by the Victoria Police on 7 March 2024 and the AFM filed her own application on the same day which ensured there was no gap in protection for the AFM which is in line with the purpose of the FVPA which was "to maximise safety for children and adults who have experienced family violence."
5. This situation occurs routinely in the Magistrates' Court and does not amount to exceptional circumstances.
6. It submitted that the Magistrate made no error in finding that the application was not vexatious, frivolous or was in bad faith. The Magistrate heard submissions from the appellant that informant Senior Constable Ali was "taking some sort of revenge, vengeance against him" because of the things said in the further and better particulars; that the informant and his ex-partner made untruthful statements in the further and better particulars, and Senior Constable Ali harassed and intimidated him by calling him at 10:00pm to do a risk assessment.
7. It was submitted that the police application was made in good faith for the immediate protection of the AFM (and her children) due to reported serious allegations of family violence. Just because the appellant disagreed with the allegations against him, that did not mean that the application is "ferocious, frivolous", or made in bad faith.
8. Victoria Police submitted that the appellant failed to demonstrate that the police applicant harassed or intimidated him by making one phone call. Nevertheless, as stated by the Magistrate, this was not relevant to the appellant's costs application.
9. The Magistrate considered the appellant's submissions and pointed out that: 'the Act specifically says the mere fact that an application is made and then withdrawn is not exceptional. It does not amount, in itself, to a vexation or frivolous application or an application made in bad faith.'
10. In relation to the FBP filed, these were not put before the Magistrate and therefore the Magistrate was not required to take them into account.
11. The failure to record the appellant's consent to the interim family violence order in relation to the AFM's fresh application, is of no relevance to the proceedings as the Victoria Police are not a party to that application.
12. The respondent submitted that the appellant could not point to any legal, factual or discretionary error.

1. I find that the appellant has not established that the Magistrate's decision is attended with any error of law.
2. In MN v OP [2017] VSC 733 Ginnane J at para 144:

"Under s 154, the general rule subject to exceptions is that each party bears their own costs of the proceeding. Secondly, the court may make an order about costs if the court decides that exceptional circumstances warrant otherwise. Thirdly, if the court is satisfied that the making of any application under the Act was vexatious, frivolous or in bad faith, the court may award costs against the applicant. Fourthly, the mere fact that an application is made and then withdrawn is not exceptional and does not amount in itself to a vexatious or frivolous application or an application made in bad faith. However, it is for MN to attempt to persuade a Magistrate that an order for costs should be made."

"The Magistrate does not have to hear extensive evidence on that issue, but he or she is entitled, if they so decide, to place weight on the primary principle of the Act that each party should bear their own costs."

1. The Magistrate correctly applied the relevant legislation, directed himself to the applicable principles, heard from the appellant and did not fall into error. He referred to the "usual rule" that each party "pay their own bills' in family violence intervention matters. The appellant made submissions to him that he was subjected to harassment and intimidation when he was contacted at 10:00pm on 5 March 2024 in circumstances where the Victoria Police had already determined to withdraw the application; that the Victoria Police had delayed making the application to withdraw in circumstances where it had flagged that intention at the 30 January 2024 mention and the delay resulted in stress. He maintained that the police had lied as the FBP referred to him making a 000 call on 30 October 2023 requesting a welfare check whereas in fact he had called the Melton Police station approximately 13 or 14 times.
2. The appellant was not able to identify any exceptional circumstances before the Magistrate that would warrant a departure from the general rule.
3. The respondent referred the Court to the decision in Owens v Stevens,[14] where Hedigan J referred to 'exceptional circumstances' and noted:

"Exceptional is defined, contextually, in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning 'unusual, special, out of the ordinary course'. This does not mean any variation from the norm. The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or exception."

1. The appellant had to satisfy the Magistrate the circumstances giving rise to the application and the conduct of Victoria Police were exceptional as defined. The circumstances surrounding the application do not amount to exceptional. They are routine in the family violence jurisdiction.
2. The appellant was unable to point to any conduct that was vexatious, frivolous or in bad faith. The Magistrate noted that "the Act specifically says that the mere fact that an application is made and withdrawn is not exceptional. It does not amount, in itself, to a vexatious or frivolous application made in bad faith, so the fact that they have made it and withdrawn it that in itself is not any of those things."
3. Unless the court were to hear evidence in a contested hearing it would not be in a position at the mention to accept the appellant's evidence against the AFM. The mention was not a waste of the appellant's time, as he made submissions in relation to costs.
4. Despite the allegations of the appellant that his ex-partner just wanted to take revenge; that she just wanted to paint a bad picture of him and was restricting his access to his children and that Senior Constable Ali was taking some sort of revenge against him, the Magistrate was entitled to accept that the interim order was brought for the protection of the AFM in good faith by Victoria Police. He was entitled to accept that the one telephone call made by Victoria Police was not relevant to the costs dispute in circumstances where he'd previously observed that there was no sense in Victoria Police undertaking the risk assessment.
5. I do not find any suggestion that the Magistrate arrived at any error of fact. The appellant has not satisfied me that the decision of the Magistrate was glaringly improbable or contrary to competing inferences.
6. The appellant pointed to the errors and inconsistencies in the two versions of the FBP relied on by the appellant. In reviewing the documents, it appears that the different number of paragraphs is due to formatting and a duplication of numbering in the FBP received by the appellant. There is no inconsistency between the paragraphs 15(b) and 16 of the FBP received by the appellant as paragraph 15(b) refers to the AFM not providing a statement at the time that Victoria Police applied for the interim order. The AFM subsequently provided a statement. Whilst the language of the two versions varies slightly, the effect is largely the same. A revision of the FBP does not support a finding that the conduct of Victoria Police was vexatious, frivolous or in bad faith. Although the respondent submits that the FBP were not before the Magistrate, the appellant did refer to them on two occasions and he was appraised of the appellant's concern that they were not accurate. Firstly, he asserted that the FBP referred to the 000 call when he had in fact telephoned the Melton Police Station and secondly, he queried how Senior Constable Ali could prepare the FBP without hearing his version and that he had proof that the FBP were untrue.
7. Interim intervention orders are designed to provide urgent, short-term protection for an AFM. They can be made without giving a respondent a full hearing. The purpose is to protect the AFM until the court can consider whether to make a final intervention order. The FBP particulars were prepared in anticipation of a contested hearing and outlined Victoria Police's position and the evidence it intended to call. They did not represent a final determination of the proceeding. Although the respondent submitted the were not two copies of further and better particulars, I accept that there were two versions. However, the differences were of no great moment and do not have relevance in relation to the issue of costs. They do not disclose that the application was vexatious, frivolous or brought in bad faith.
8. The appellant queried why Victoria Police would withdraw if it was concerned for the AFM's safety. It is not unusual for Victoria Police to withdraw an application and permit an AFM to stand in its shoes or issue a fresh application in this jurisdiction.
9. In respect of the Magistrate's apparent acquiescence to the notion that he had agreed on 30 January 2024 that a costs order would be made, there was no application before him on that occasion. He did not seek to pre-empt any finding he would ultimately make if one was subsequently made. In my view, the Magistrate made it clear that he would not have said that the appellant would be entitled to costs with any certainty on 30 January 2024 and he also acknowledged that the AFM may be at risk in relation to costs with respect to her fresh application.
10. It is well established that a failure to afford procedural fairness to a party to a dispute will involve an error of law if that failure could have materially affected a Court's decision.
11. In Nathanson v Minister for Home Affairs,[15] Kiefel CJ, Keane and Gleeson JJ, observed:

"There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration....... a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive "story" of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case... [the Court] does not require demonstration of how that party might have taken advantage of that lost opportunity.... To the contrary .... [the Court] proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity to present their case, a party will take advantage of the opportunity and that, by doing so, the party could achieve a favourable outcome."

1. In International Finance Trust Company Ltd v New South Wales Crime Commission,[16] French CJ said:

"Procedural fairness or natural justice lies at the heart of the judicial function. In the federal constitutional context, it is an incident of the judicial power exercised pursuant to Ch III of the Constitution. It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary."

1. In Assistant Commissioner Michael James Condon v Pompano Pty Ltd,[17] the plurality said:

"The rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed in the context of administrative decision-making- but in terms which have more general and immediate application, '[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.' To observe that procedural fairness is an essential attribute of a court's procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them."

1. I am not satisfied that the appellant was not afforded procedural fairness. The Magistrate afforded to him the opportunity to make submissions in relation to costs. Indeed, when the appellant informed the Magistrate that he did not understand the meaning of vexatious, frivolous and bad faith, the Magistrate explained the relevant meanings to the appellant. He was invited to put before the Magistrate any evidence or make submissions relevant to the exercise of the Magistrate's discretion in respect of the application for costs.
2. Moreover, the appellant had previously been represented but when he appeared on 7 March 2024, he informed the Court that his legal representative was unavailable, but he may become available "close to midday". The Magistrate stood the application down for the appellant and the AFM's counsel to discuss the future course of the fresh application as well as to enable the appellant to determine if his legal representative could attend. Ultimately when the matter resumed after the lunch adjournment, the appellant's legal representative was still unavailable, but the appellant wanted to proceed. In my view the Magistrate was accommodating to the appellant.
3. I find that there has been no discretionary error demonstrated.

1. The appellant has failed to demonstrate that the decision of the Magistrate was attended with any legal, factual or discretionary error. I therefore dismiss the application.

[3] Sunshine Court Audio Recording, 30 January 2024.

[4] MCV Transcript 7 March 2024 ('T') 15, Line ('L') 2-19.

[6] [2023] VSC 13.

[7] [2016] WASC 153.

[8] De Vries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479.

[9] [2019] HCA 28; (2019) 266 CLR 129 at [55].

[14] [1991] VSC 91.

[15] [2022] HCA 26.

[16] [2009] HCA 49.

[17] [2013] HCA 7.