Plaintiff v Defendant

COSTS - DDD v Magistrates' Court of Victoria [2023] VSC 89 considered.

1 The originating motion in this proceeding raised questions of law as to whether, under the Family Violence Protection Act 2008 (Vic) ('the FVP Act') or the Magistrates' Court (Family Violence Protection) Rules 2018 (Vic) ('the FVP Rules'), an affected family member ('AFM') could be substituted as the applicant in an intervention order proceeding originally applied for by Victoria Police.

2 The practice of seeking to substitute the applicant, the Court was informed, was a commonly arising request but non-uniformly made order in family violence intervention order ('FVIO') proceedings in the Magistrates' Court of Victoria ('MCV').

3 The plaintiff and the second defendant were married in March 2020, and separated in or about September of that same year.

4 On 10 September 2020 the third defendant, a Victoria Police officer, applied for a FVIO in which the plaintiff was the AFM and the second defendant was the respondent ('the FVIO proceedings').[1] The first defendant, the MCV, on 14 September 2020 at the Broadmeadows Magistrates' Court granted an interim FVIO protecting the plaintiff.

5 On 28 September 2020, the second defendant applied for an FVIO naming herself as AFM and the plaintiff as respondent ('the cross-order proceedings'). The MCV granted an interim FVIO in those terms on the same day.

6 The FVIO proceedings and the cross-order proceedings were listed together and adjourned to a directions hearing on 15 July 2021.

7 The directions hearing on 15 July 2021 was heard by Magistrate Grinberg. At the commencement of the hearing, the police lawyer stated that the police wished to withdraw from the proceeding, with the plaintiff substituted as applicant.[2] The Court was informed by the police lawyer that the police were concerned that they did not have confidence the test[3] for the granting of a full and final FVIO would be satisfied.[4]

POLICE OFFICER: That's correct, your Honour. I can advise in the police application where [NBT] is the affected family member, police are seeking to withdraw their involvement, your Honour. I note in conversations with Mr Pena-Rees they were hoping to be essentially substituted as the applicant if that's possible for the Court to accommodate, your Honour?

HIS HONOUR: What do I need to do for that?

POLICE OFFICER: Just pop out of the applicant's name. So, from a Victoria Police perspective we are of the view that we can't satisfy the second limit [sic] of the test and therefore seeking to withdraw our application, Your Honour.

However, Mr Pena-Rees has indicated that he would like to pursue an application on [NBT's] behalf.

HIS HONOUR: Do you want to pursue that, Mr Pena-Rees?

MR PENA-REES: We do...[5]

9 Magistrate Grinberg adjourned the proceedings to a contested hearing on 12 November 2021 and gave oral directions that Victoria Police be excused as applicant.[6] However, the written entry in the Court register continued to record the third defendant police officer as the applicant, the plaintiff as the AFM, and the second defendant as the respondent.[7]

10 After some procedural delay, the final hearing came before Magistrate Masood on 4 April 2022. Magistrate Masood characterised the FVIO proceeding as a police matter, and queried at the commencement of the hearing how it was proposed that the matter would run without the police applicant before the Court.[8] The proceeding was adjourned to 2 June 2022, with the parties to file written submissions on the issue of substitution of the police applicant in these circumstances.

11 On 2 June 2022, Magistrate Masood gave an oral ruling ('the Magistrate's Ruling') that there is no legislative basis under the FVP Act or FVP Rules for an AFM to be substituted as the applicant in an intervention order proceeding originally applied for by Victoria Police.[9] The consequence of this, her Honour ruled, was that the interim order in the FVIO proceedings ceased to exist on 15 July 2021 when Victoria Police formally announced their withdrawal, due to the operation of s 60(e) of the FVP Act.[10] Her Honour stated as follows:

This matter was listed for a contested hearing in relation to two cross applications that are listed before the court. One which is a personal application by [TZY] and the second application that comes before the [sic] is originally a police application by [PWY], where the AFM is [NBT] and the respondent is [TZY]. That application was before the court in July of last year, for the purpose of a directions hearing. Now, what records indicate that on that day Victoria Police were excused from the application. This matter came before me on 4 April for a contested hearing.

On that date I raised the issue about the validity of the application before the court. It was submitted essentially that police were granted leave to withdraw, and that [NBT] was substituted as the applicant on that date. In relation to that, it was essentially submitted that it was a two-step process. Police withdrew and that police withdrew on the basis that they had made an assessment that the ongoing likelihood of family violence was not something they could satisfy the court of in relation to the application for a final order.

And whilst it was not formally noted or there was no formal order made on the application or the decision sheets before the court in relation to that hearing, the application has repeatedly been adjourned since then. So, I'm prepared to accept this admission of [NBT's] counsel that it was implicit that the intention of the Magistrate was that [NBT] was substituted as the applicant. I raise the issue about where the court gets the power to substitute an applicant, given the operation of s. 60, sub-s. e of the Family Violence Protection Act, which states that an interim order ends upon an application being withdrawn.

Reliance was placed by [NBT's] counsel on the Magistrates' Court rules. Especially, rule no. 15.03 and 15.04 of the rules of this court. Essentially, the first of those rules relates to the amendment of an application before the Court. I'm not satisfied that that rule extends to - essentially creating a new application by substituting a new applicant. And I'm not satisfied that that rule essentially overrides or supersedes the operation of s. 60, sub-s. e. There was also reliance placed on the rule with regards to duplication of proceedings.

In my view, duplicity is ultimately dealt with - or can be dealt with by the Court. For instance, not granting police leave to withdraw. I also take the view that they're not necessarily going to be duplicitous proceedings. The police were relying on one set of facts and circumstances. They withdrew that application. It would be for [NBT] then to put his own facts and circumstances before the Court. Again, I'm not satisfied in any event that that rule would override the express provision of s. 60, sub-s. e. In my view, the minute that leave to withdraw that application was granted that was the end of that order and that was the end of the application before the court.

I do understand and accept what was said about the need for the court to accept decisions made by other judicial officers in relation to matters that come before the Court. But in my view, this is a very fundamental issue about whether the Court even has jurisdiction. The Court's jurisdiction is not triggered unless there's a valid application before the Court. In my view, there is no valid application. There's been no submissions that have been made that satisfy me that there is a valid application before the court accordingly.

I'm formally ruling that there is no interim order before the Court and there's no valid application before the Court. In my view, there's no legislative basis for an AFM to be substituted as an applicant. So, accordingly that application will be struck out.

... I should just go back and say the application isn't formally struck. In my view, there is no valid application before the Court, and it ceased to exist in July.[11]

12 The proceedings were adjourned to a date to be fixed, pending the foreshadowed present judicial review application. The present application was initiated by originating motion filed on 1 August 2022.

13 Both the first and second defendant filed Hardiman letters with the Court electing not to actively participate in these proceedings. The third defendant took an active role in the proceeding as a representative of Victoria Police in the nature of a formal contradictor to assist the Court in this proceeding. Counsel for the third defendant submitted that, as Victoria Police were regular applicants in family violence applications before the Magistrate's Court, there was an interest in seeking the Court's guidance about the appropriate mechanism for Victoria Police to withdraw in circumstances where the affected family member wishes to proceed with an FVIO application on their own behalf.[12]

14 Written submissions were filed by the plaintiff and the third defendant, which were expanded upon at trial on 28 July 2023.

15 The plaintiff relies on two grounds of review in his originating motion:

(i) the first defendant erred in the construction of sub-section 60(e) of the [FVP Act], by holding that, where an applicant is excused in a family violence intervention order proceeding, the sub-section operates to automatically end any interim order made in such proceeding and, thereby, such proceeding (Ground 1).

(ii) the first defendant erred in finding that there is no power, including under rules 15.03 and 15.04 of the Magistrates' Court (Family Violence Protection) Rules 2018 (Vic), whereby the Magistrates' Court of Victoria may order substitution of an applicant in a family violence intervention order proceeding (Ground 2).[13]

16 These grounds are clearly interrelated as they directly arise from the factual circumstances which occurred here. However, they independently raise contentious issues of process.

17 That said, the parties who actively participated in this hearing were in substantial agreement regarding the outcome in respect of Ground 1. I am, independent of the parties allied submissions, satisfied that the process for the valid withdrawal of the FVIO proceedings was not followed. No valid grant of leave to withdraw the application, consistent with r 4.08 of the FVP Rules, occurred before Magistrate Grinberg on 15 July 2021. The reasons for this conclusion in respect of Ground 1 are set out below. I propose to make the declaration sought by the plaintiff.

18 The parties were not at idem on the second ground but impressed upon the Court the importance of its resolution, as the question regarding the power to substitute out a police officer applicant was one of ongoing controversy. A non-uniform approach to whether the power existed, and if it did how it should be exercised, remained a live issue in the practice and procedure of the Magistrates' Court.

19 As with any statutory interpretation exercise, both the broader purposes or scheme of the relevant legislation and its specific provisions will guide the process. The High Court has frequently restated this fundamental principle.[14] It was recently and concisely stated by the plurality in SZTAL v Minister for Immigration and Border Protection[15] as follows:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[16]

20 The FVP Act is crafted with particular language in order to convey the protective purposes which underpin the Act.[17] These purposes are set out in ss 1 and 2:

1 Purpose

The purpose of this Act is to -

(a) maximise safety for children and adults who have experienced family violence; and

(b) prevent and reduce family violence to the greatest extent possible; and

(c) promote the accountability of perpetrators of family violence for their actions.

2 How purpose is to be achieved

This Act aims to achieve its purpose by -

(a) providing an effective and accessible system of family violence intervention orders and family violence safety notices; and

(ab) providing for the sharing of information that is relevant to assessing and managing a risk of family violence; and

(b) creating offences for contraventions of family violence intervention orders and family violence safety notices; and

(c) providing a framework for achieving consistency in family violence risk assessment and family violence risk management.

21 The provision in issue in Ground 1 of this review is s 60(e) of the FVP Act. Section 60 provides as follows:

60 Expiry of interim order

An interim order ends -

(a) if the court makes a final order and the final order includes an order that the interim order continues until the final order is served on the respondent, when the final order is served on the respondent; or

(b) if the court makes a final order and the final order does not include an order about the interim order continuing as referred to in paragraph (a), at the time the final order is made; or

(c) if the court refuses to make a final order in relation to the application, at the time of the court's refusal; or

(d) if the interim order is revoked by the court, at the time of the revocation; or

(e) if the application for the family violence intervention order is withdrawn, at the time of the withdrawal.

22 In proceedings for a FVIO, the process commences with an application for an interim FVIO. The interim FVIO is then followed by a decision of the Court as to whether to make a final FVIO. The Court may make a final order (which can be made for a specified duration or an indefinite period)[18] or refuse to make a final order, or the matter may conclude by the application being withdrawn (upon leave being granted).[19] The test for whether a final FVIO should be granted is found in s 74(1) of the FVP Act:

74 Power of court to make final order

(1) The court may make a final order if the court is satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again.

23 Notably, s 75(1) of the FVP Act enables the Magistrates' Court to make a final order even where the AFM does not want a final order, where there is a police officer applicant. It provides:

1. Power to make final order if affected family member has not consented to application or order - police applicants

(1) If the applicant for a final order is a police officer, the court may make the order under section 74 even if the affected family member has not consented to the making of the application.

24 This is one of the provisions within the FVP Act which demonstrates the protective and specialist character of the legislation, and the role a police officer applicant may play in instituting the proceeding.

25 The usual Magistrates' Court procedural and court rules are explicitly excluded by s 170(1) of the FVP Act. Bespoke rules are able to be made which are better suited to what might be required to facilitate the operation of and the underlying protective purpose of the legislation.

26 The FVP Act creates a specialist civil jurisdiction yet has some elements which superficially reflect the appearance of the criminal jurisdiction. However (as noted in an exchange between the bench and counsel) the family violence jurisdiction is a creature of statute and, in that creation, it has some jurisdiction-specific features. These features have their genesis in the policy response to the societal scourge of family violence.[20] The role of a police officer in the FVP Act is one such characteristic. The policy behind empowering a police officer to bring an application is understandable. It places a recognised independent authority between the parties, where there is very often a significant power imbalance and, not uncommonly, a lack of the emotional strength needed to bring such an application for fear of retribution, or concern about an ability to cope with the court process. It is the protective nature of the legislation which underpins and informs the role of a police officer as applicant.

27 It is notable, in this same vein, that the FVP Act approaches the inclusive definition of 'party' in a manner which extends it beyond the relationship framework usually understood to apply in inter partes civil litigation.

party, to a proceeding under this Act, includes -

(a) the affected family member or protected person for the proceeding, whether or not the person is the applicant for the proceeding; and

(b) if the affected family member or protected person is not the applicant for the proceeding, the applicant; and

(c) the respondent for the proceeding or the respondent who is the subject of an order made in the proceeding;

29 Moreover, there has been a particular effort to emphasise the importance of this definition in the FVP Act, as observed from the repeated planting of notations which make reference to the definition throughout the Act.[21] This is exemplified in s 108:

1. Who may apply to vary, revoke or extend family violence intervention order

(1) An application to vary, revoke or extend a family violence intervention order may be made to the court by - > > (a) a party to the proceeding in which the order was made; or > > Note > > See the definition of party in section 4 which provides that the protected person is a party to the proceeding, whether or not the person is the applicant for the proceeding.

(b) if the protected person is a child -

...

(d) if a police officer was not a party to the proceeding in which the family violence intervention order was made, a police officer; or

(e) if the protected person has a guardian and the guardian was not a party to the proceeding in which the family violence intervention order was made, the guardian.

(2) For the purposes of subsection (1)(a), if a party to the proceeding in which the family violence intervention order was made was a police officer or an officer of another organisation -

(a) the application may be made by any other police officer or officer of the organisation; and

(b) that police officer or officer is taken to be a party to the original proceeding.

30 As noted above, the usual civil procedure rules are explicitly carved out from the operation of the FVP Act by s 170(1), which states:

170 Application of Magistrates' Court Act 1989 and rules

(1) Part 5 (other than sections 100(1)(d) and 109) of the Magistrates' Court Act 1989 and any rules made under that Act in relation to civil proceedings (other than rules made for the purposes of section 109 of that Act) do not apply to proceedings under this Act or a proceeding for a variation, extension or revocation of a recognised DVO.

31 This provision paves the way for a specific set of procedural rules in intervention order proceedings, namely the FVP Rules.

32 The FVP Rules are created pursuant to s 209 of the FVP Act, which relevantly provides:

209 Rules of court and practice directions for Magistrates' Court

(1) The Chief Magistrate together with one or more Deputy Chief Magistrates may jointly make rules of court for or with respect to proceedings in the Magistrates' Court in relation to applications and orders made under this Act or the National Domestic Violence Order Scheme Act 2016.

(2) Without limiting subsection (1), rules may be made for or with respect to the following matters -

(a) the proper venue for proceedings under this Act, including the transfer of proceedings between court venues;

(b) the right of parties to appear personally or to be represented by a legal practitioner;

(c) the amendment of applications;

(ca) processes and procedures for making and filing applications for family violence intervention orders, including, but not limited to -

(i) making and filing applications by electronic communication; and

(ii) providing for different requirements, procedures or processes in relation to applications made during court hours, after hours or in remote areas and applications where the applicant or respondent is an adult or a child;

(d) the striking out or dismissal by the court of matters;

(e) the adjournment of proceedings by the court and the power to stay orders;

(f) processes for filing family violence safety notices in the court;

(fa) forms, notices and written explanations;

(g) access to records and documents held by the court;

(h) extracts from records and documents held by the court and certification of those extracts;

(i) any other matter or thing required or permitted by or under the National Domestic Violence Order Scheme Act 2016 to be dealt with by rules of court or otherwise necessary or required for the purposes of that Act

33 Section 209 is relevant to the consideration of Ground 2, as it sets the framework for the procedural rules which can be made to further the operation of the FVP Act.[22] The rule-making power contained in the FVP Act is not expressed to be exclusive to those categories of rules which are set out in s 209(2). However, s 209(2)(c) does make specific provision for the making of rules for the amendment of applications.

34 Rules 15.03 and 15.04 of the FVP Rules are the key rules under consideration in this appeal. These provide:

15.03 General power of amendment

For the purpose of determining the real question in issue between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document (including an application) in a proceeding be amended or that any party have leave to amend any document in the proceeding.

15.04 Directions

At any stage of a proceeding the Court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination.

35 Additionally, reference was made in argument to r 4.05 which applies to an application for variation, revocation, or extension of the family violence intervention order. The rule applies to applications made under s 100 (the power of the court to vary or revoke a family violence) and s 106 (the power of the court to extend a final order) order). Section 108 of the FVP Act (extracted above at [29]) sets out who may apply to vary, revoke, or extend a FVIO. [23] Rule 4.05 provides:

4.05 Application for variation, revocation or extension of a family violence intervention order

(1) For the purposes of sections 100 and 106 of the Act, an application for a variation, revocation or extension of a family violence intervention order must include the following particulars -

(a) the names of the parties to the proceeding in which the order was made;

(b) the name of the applicant for the variation, revocation or extension;

(c) the capacity in which the applicant applies;

(d) if the applicant is not the protected person or a police officer -

(i) whether the protected person consents to the making of the application; or

(ii) if the protected person is a child, whether a parent of the child consents to the making of the application; or

(iii) if the protected person has a guardian, whether the guardian consents to the making of the application;

(e) whether the applicant requires leave of the Court to make the application;

(f) the date of making the family violence intervention order;

(g) whether any other persons have become family members of the respondent since the family violence intervention order was made;

(h) the reasons for seeking a variation, revocation or extension;

(i) details of any relevant Family Law Act order or child protection order, or any current application for a relevant Family Law Act order or child protection order;

(j) if the application is for a variation, the conditions of the variation sought;

(k) if the application is for an extension, the duration of the extension sought.

(2) If the respondent applies for the variation or revocation of the family violence intervention order, the application must also set out any change in circumstances since the family violence intervention order was made.

36 Finally, given the factual scenario which unfolded at the directions hearing on 15 July 2021, r 4.08 which governs the withdrawal of a FVIO application, is of relevance. It provides:

4.08 Withdrawal of applications

(1) An application under the Act may be withdrawn only with the leave of the Court.

(2) A party seeking to withdraw an application must -

(a) file a written notice of withdrawal, to be served on the respondent by the registrar; or

(b) if the person attends court, make an oral application to the Court.

37 The plaintiff submitted that, contrary to the Magistrate's Ruling, s 60(e) of the FVP Act was never enlivened and did not operate to terminate the proceeding on 15 July 2021 This was said to be because:

... the applicant was excused rather than leave being granted for the application to be withdrawn and, indeed, the applicant remained on the Court record.[24]

38 The plaintiff emphasised the specific language of s 60(e) and its plain meaning. The application itself must have been withdrawn to trigger the operation of s 60(e). In the present case, the application remained on foot (albeit in an amended fashion with the police excused) as no application for leave was made, let alone granted.[25] The plaintiff noted that s 60(e) does not make any reference to the concept of the applicant, but rather makes the application the central focus.

39 The plaintiff cited the case of MNX (a pseudonym) v TNV (a pseudonym) ('MNX'),[26] in which Garde J held that the discretion to grant leave to withdraw an application under the FVP Act must be guided by the paramount protective considerations of the legislative regime.[27] The plaintiff argued that the same principle applied to the present question.[28]

40 The plaintiff stressed that, as the transcript of hearing before Magistrate Grinberg and the orders make apparent, the police officer was excused from the proceeding on 15 July 2021. There was no evidence of any direction or orders being made to the effect that leave for the application to be withdrawn was given. Thus, it was submitted, the police officer remained, and continues to remain, the applicant on the record.[29] There were no submissions made on 15 July 2021 regarding the granting of leave and it was clear that the intention behind the course taken was an attempt at substitution.

41 The third defendant synthesised its submissions on Ground 1 to essentially one cogent point - that contrary to the FVP Rules, leave was not sought from Magistrate Grinberg to allow the third defendant to withdraw his application on 15 July 2021. Therefore, the withdrawal was not in fact or at law effected. It was conceded that the factual circumstances demonstrated that what was attempted was a substitution of the applicant and not a withdrawal of the application.

42 Consequently, s 60(e) was never triggered and there is still an interim FVIO in place.[30]

43 This ground requires the Court to determine what, as a matter of law, is required for a valid withdrawal of an application and what, as a matter of fact, actually occurred at the hearing on 15 July 2021.

44 I am satisfied on the material before the Court, the police lawyer made an application on the third defendant's behalf to withdraw as the applicant. Whilst the language is not entirely consistent, it was accepted by both parties before me that there was in fact no application for leave to withdraw the application. I accept that on the evidence the better characterisation was that the application made to his Honour was to withdraw as the applicant and to allow the plaintiff to proceed as applicant in the police officer's stead. The order made by Magistrate Grinberg was to excuse the police officer, not to grant leave to withdraw the application. The interaction from the relevant part of the transcript (extracted above at [8]) makes this clear.

45 Rule 4.08 of the FVP Rules (extracted above at [36]) governs the withdrawal of an application and provides that leave of the court is required in order for a police officer to withdraw an application. This is clear from a plain reading of r 4.08.

46 The considerations relevant to whether leave should be granted are not specified in r 4.08. However, the process preliminary to the consideration by the Court of a grant of leave is set out. It requires the party seeking leave to withdraw the application to either file a written notice of withdrawal, which must be served on the respondent by the registrar, or make an oral application to the Court.

47 Here, the second form of application is relevant because the request made on 15 July 2021 was an oral one. The objective facts demonstrate (and both the parties before me agreed that this was the proper conclusion on the evidence) that the submissions made to Magistrate Grinberg were intended to seek the excusing of the police officer from further participation and an order in substitution (with the advice to 'pop' the name of the AFM in the police officer's stead as applicant). It was not an application for leave to withdraw the application.

48 This would be sufficient to draw the conclusion that no application for leave to withdraw the application was made in conformity with r 4.08.

49 This conclusion is further supported by there being no evidence that his Honour considered the necessary factors relevant to the exercise of discretion to grant leave to withdraw the application.

50 In the absence of express legislative considerations, in the exercise of the discretion to allow withdrawal of an application matters consistent with the purpose of the legislation are pertinent. This must include the safety of the AFM as a primary consideration.

51 This approach is consistent with the observation and analysis of Garde J in MNX, where his Honour after quoting the oft-quoted passage in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[31] went on to say:

In circumstances where the Magistrates' Court is asked to exercise a discretionary power contained in the Act or the Rules, such as that in r 4.08, and there are no listed factors or criteria which govern the exercise of the power or the listed factors are not exhaustive, regard must be had to the purposes described in ss 1 and 2 of the Act as informed by the preamble. It follows that in exercising the discretionary powers found in the Act and in the Rules where statutory criteria are absent or not exhaustive, the safety of affected family members, protected persons and children will be the paramount consideration. The prevention and reduction of family violence to the greatest extent possible is also an important consideration, as is the need to promote the accountability of perpetrators of family violence for their actions.[32]

52 It is clear from the transcript of the proceedings before Magistrate Grinberg that he did not consider any question of the safety of the AFM. He asked the third defendant what was necessary to make the substitution sought by the plaintiff and confirmed it was not objected to by the third defendant. He was told by the third defendant he could just 'pop' the name of the plaintiff in the order in the third defendant's place. There was no consideration of the matters which ought to be considered and no formal order granting leave to withdraw was made.

53 In the absence of the application being made in accordance with r 4.08, and without submissions on the safety of the affected family member being considered by the Magistrate, I must conclude that as a matter of fact and law there was no valid grant of leave given to withdraw the application. Consequently, the application remains on foot. Section 60(e) was never enlivened because there was no valid application for leave to withdraw the application and no withdrawal was effected.

54 Ground 1 is made out and I propose to make the declarations sought by the plaintiff in relation to this ground, that:

(a) Magistrates' Court proceeding L12164429 has at all times been, and remains, valid for the purposes of the FVP Act; and

(b) the Interim FVIO made in proceeding L12164429 on 14 September 2020, in which the plaintiff is named as the affected family member and the second defendant is named as the respondent, remains in force.

55 As aforementioned, the focus of the second ground of review was whether either r 15.03 or r 15.04 of the FVP Rules provides a statutory power pursuant to which the Magistrates' Court of Victoria may order substitution of an applicant in a FVIO proceeding.

56 The plaintiff submitted that the Magistrate's Ruling in respect of both rr 15.03 and 15.04 was erroneous. In relation to r 15.03, it was said that Magistrate Masood erred in finding that r 15.03 did not allow for substituting a "new" applicant and cannot be exercised such that it "essentially overrides or supersedes the operation" of s 60(e).[33] The plaintiff submitted that Magistrate Masood did not provide any rationale in respect of her finding that r 15.04 could not be utilised for substitution.[34]

57 The plaintiff analysed both r 15.03 and r 15.04, and submitted that at least one of these rules, if not both, could be utilised as a basis for a substitution power.

58 The plaintiff noted that r 15.03 (extracted above at [34]), lists three purposes for which a document may be amended under the Rules. The plaintiff focussed on "the purpose of determining the real question in issue between the parties". The plaintiff submitted that there were broad rights conferred upon parties under the legislative scheme of the FVP Act, noting the definition of 'party' in s 4 of the Act (extracted above at [28]). On this basis, it was submitted that:

... the rule is not limited in its application to amendment for the purposes of determining the real question in issue between the applicant and the respondent but, rather, the issues raised on the application, by the applicant, the respondent, and the AFM. Upon such reading, the real question in issue between the parties - namely, whether a family violence intervention order should be made on a final basis - does not vanish merely because an applicant who is not also the AFM seeks to withdraw or be excused from involvement in the application.[35]

59 The plaintiff contended that the FVP Act does not contain any provision prohibiting substitution of the applicant, and in keeping with well-established principles regarding the survival of proceedings despite issues with joinder of parties, the substitution power should be drawn from r 15.03.[36] The common law principles regarding the identification of necessary parties to litigation predated the introduction of the standard civil procedure rules and the rules made in the Magistrates' Court of similar import.[37] It was submitted that, notwithstanding there being no specific civil procedure rule allowing for substitution, the common law provides that this can be done.

60 In respect of r 15.04, the plaintiff stressed that this rule was equally concerned with the "real issue in question" in the proceeding because it focussed on the determination of the proceeding. It was said that these concepts boil down to the same issue - whether a family violence intervention order should be made on a final basis.[38]

61 The plaintiff emphasised the protective purposes of the FVP Act, in particular the requirement in s 2 that there be "an effective and accessible system of family violence intervention orders". It was said that this purpose corresponds with the power in r 15.04 to order directions so as to ensure that an application for a FVIO is determined "effectively, completely, promptly and economically".[39]

62 On such an analysis, the plaintiff submitted, it was evident that r 15.04 could and should allow for the substitution of an applicant.

63 Counsel for the third defendant acknowledged the primary role taken in this proceeding as a contradictor. Counsel candidly acknowledged that there was a practice in intervention order proceedings for a police officer applicant to encourage or facilitate the substitution of a police officer applicant for another party (such as the AFM).

64 It was in this context that the submissions as to the power to substitute the police officer applicant for another were framed. The third defendant emphasised the protective purpose of the legislation and the independent and authoritative role that Victoria Police play in the family violence jurisdiction.

65 The third defendant referred to MNX and stressed that the findings of the Magistrate at first instance (that there is no power to substitute a party) accepted by Garde J, should be adopted in this case.[40] The third defendant acknowledged that the observations of Garde J in MNX on this issue were obiter, but argued that the underlying reasoning of the Magistrate at first instance was sound.[41]

66 It was submitted that the use of r 15.03 and/or r 15.04 to substitute a police officer applicant for the AFM would amount to a de facto process to allow withdrawal of an application. This procedure or method would effectively circumvent r 4.08 (extracted above at [36]), which was the rule directly applicable for withdrawal of an application. Requiring the grant of leave pursuant to r 4.08 triggers the consideration of whether leave ought to be granted in the circumstances. Considerations consistent with the protective purposes of the FVP Act (including the safety of the AFM) are able to be taken into account in deciding whether the continued presence of the police officer in the proceeding is appropriate.

67 It was submitted that the use of r 15.03 and/or 15.04 to substitute a party for the police officer applicant in this way would be to take a less protective course than what is envisioned by r 4.08. As no specific leave is required and this would be contrary to the purposes of the FVP Act .

68 The first defendant framed this warning as follows:

If rules 15.03 and 15.04 of the Rules are interpreted as providing a mechanism for a police prosecutor to withdraw as a party in circumstances where the affected family member wishes to proceed with an FVIO application on their own behalf, and without a requirement for leave of the court, this interpretation could be inconsistent with the protective requirements in ss 109 and 110 for the court to have oversight of variations to an FVIO.[42]

69 I have determined that the amendment to an application in a FVP Act proceeding by permitting substitution of the police officer applicant for another party, such as the AFM in this case, is not an unlawful practice. It is, however, a discretionary path which should be taken with caution.

70 I consider that in exercising the discretion to make an order to amend the application document to substitute the AFM party as the applicant party, the same considerations which apply to the grant of leave to withdraw with reference to the purposes of the FVP Act must be brought to bear.

71 I note that rr 15.03 and 15.04 are rules made as part of the rules of court practice specific to the FVP Act, per s 209.

72 It is incorrect to conclude (as suggested by the third defendant) that the use of these rules to make an order substituting an applicant would be a de facto withdrawal of the application inconsistent with r 4.08. I consider they are separate and distinct exercises of power, but complementary in their use. Rule 15.03 also calls for a grant of leave and whilst r 15.04 does not require a grant of leave, its use does require an exercise of discretion. These rules are not of automatic application; they require the supervision of the Court. Rule 15.03 explicitly requires the leave of the Court to amend a document in a proceeding. As such, in any exercise of discretion (in addition to specified considerations where they are stated) the discretion must take into account the purpose of the legislation. I am of the view that, just like with the exercise of discretion to grant leave to withdraw an application provided for by r 4.08, consideration must be given by the Court (and thus by the Magistrate in exercising this power) to the protective purposes of the legislation and in particular the safety of the AFM.

73 I accept that the power of amendment provided for by rule 15.03 is of a more general nature. Rule 4.08, which deals solely with the withdrawal of an application, is specific to that power of withdrawal. It is not, nor is it expressed to be, a rule which deals with amendment of the application.

74 The withdrawal of an application is one of the specified ways in which an interim FVIO comes to an end pursuant to s 60(e) of the FVP Act. Rules 15.03 and 15.04 provide the Court with more generally facilitative powers to assist in the implementation of the Act. Rules 15.03 and 15.04 are general procedural management rules aimed at facilitation of the processes necessary to conduct family violence proceedings in the Magistrates' Court. They are to be interpreted in a manner which furthers the purposes of and assists in the implementation of the FVP Act.

75 The procedural question here is whether the legislation allows for an amendment to be made to the application which would substitute the police officer applicant in a proceeding for a FVIO. As noted, there is no specific power for substitution, unlike the powers which exist in the general civil procedure set out in the Magistrates' Court General Civil Procedure Rules 2020 (Vic).[43]

76 I am not persuaded that the absence of a specific power to substitute a party is fatal in this analysis. As noted earlier, family violence legislation is a creature of statute and as such has created a form of litigation which is not identical to general inter partes civil litigation. The power sought to be used here is erroneously characterised as an amendment of parties. In my view, as the AFM is already a party in the proceeding, the power to amend a document (i.e., the application) is specifically provided for by r 15.03.

77 It is trite to say that there must be someone or some legal entity who initiates a proceeding in all forms of civil litigation. However, I can discern nothing in the words or the scheme and purpose of the FVP Act which requires that a police officer who initiated an application remain in the applicant role in the proceeding. Once the application is initiated, the police officer is a party, along with the respondent and the AFM.

78 The power in r 15.03 is a document amendment power which can be exercised by the Court itself or by granting leave to any party to amend any document (including explicitly an application[44]) in a proceeding. The power is not unlimited nor is it expressed to be so. It is a power expressed to be available to the Court for the purposes of determining "the real question in issue between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings". In my view, at least one and likely two of these purposes are capable of being enlivened in the present scenario such that a substitution discretion could be justified.

79 Once the proceeding has been commenced, the scheme of the legislation designates the AFM, as well as other persons specified in s 4, as a party. This confers upon the AFM the same status and rights under the FVP Act as any other party. For example, any party to the proceeding can apply to vary, revoke, or extend an FVIO pursuant to ss 100 and 108 of the FVP Act.[45] Whilst there are additional provisions which apply to applications made by respondents and under s 109 and for police officers under 110, I am of the view that these provisions demonstrate how the FVP Act has been designed to empower AFM's to have an active role in proceedings should they wish. This is consistent with s 2(a) of the FVP Act, which states that the Act aims to achieve its protective purpose by "providing an effective and accessible system" of FVIOs (emphasis added).

80 In the context of a legislative scheme which has accessibility as a stated aim, and not only invites the involvement of AFMs but gives participatory rights within the proceeding to AFMs, it is consistent with the scheme and purposes of the FVP Act to infer from r 15.03 a discretionary power to substitute an AFM in place of a police applicant.

81 From a practical point of view, there may well be circumstances where the police officer who is the applicant party does not have the information or evidence within his realm to be confident that a final order will be successful on his or her perception of the matter at a given time. Whilst that is an ethical and evidentiary consideration for the police officer (as a model litigant) it may not be decisive in whether, on the final hearing, an order will or will not be made. That decision will turn on the evidence before the Court at the time of the final hearing. That evidence may include the information provided by the AFM or other evidence to be called. That a forensic or resource-based decision was made by the police officer will not be a relevant consideration before the Court in a final hearing where the test is that required by s 74 of the FVP Act.

82 That test requires the Court to be "satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again". Police evidence is not the only vehicle through which this standard might be proven, and the police (as diligently as they might try) do not always see the entire picture in family violence scenarios. The participants in, witnesses to, and ultimately victims of the violence are the most direct sources of evidence in a given matter.

83 If, as in the circumstances of this matter, the AFM believed he had reason to continue to seek the protection of a FVIO, the substitution of him as the applicant party would be consistent with both:

(a) determining the real question in issue between the parties to the proceeding; and

(b) avoiding multiplicity of proceedings.

84 These considerations are explicitly identified as two of the considerations or caveats on the exercise of the general power of amendment in rule 15.03. In making a decision to exercise this power, the Court should also consider the purposes of the FVP Act, just as it is required to do so in the consideration of leave to withdraw an application under r 4.08. In this, I do not consider the more general power to substitute the AFM party as the applicant party in the application as being an unlawful exercise of power or acting in excess of power. Nor do I see it as contradictory to, or in conflict with, the relationship between r 4.08 of the FVP Rules and s 60(e) of the FVP Act. I respectfully disagree with the ruling of her Honour Magistrate Masood. The substitution of the AFM as the applicant party is a distinct and different process than that of withdrawal provided for by r 4.08 and s 60(e). They are different concepts and different steps in the system of procedure created by the FVP Act.

85 In relation the use of r 15.04, I do not consider reliance on this rule to be of direct application to facilitate the amendment by substitution of the AFM as the applicant. I consider the making of a direction pursuant to r 15.04 to be a procedural adjunct to the more targeted processes and court rules. It might be utilised in conjunction with r 15.03 in circumstances such as occurred in this matter, but as a standalone rule it would not be a preferred course. I do not consider this to be the key provision which should be used for this purpose, and reliance on r 15.03 is more apposite. The role of r 15.04 is an adjunct or general case management provision.

86 As noted above (at [65]), submissions were made by the third defendant as to the precedent status of the decision of Garde J in MNX. In particular, it was put that Garde J had accepted and endorsed the view of the Magistrate at first instance that there was no substitution power in the FVP Act or FVP Rules.

87 In MNX, Garde J was not required to consider the question of whether a viable substitution power exists in the FVP regime. The context of the judicial review and the grounds for relief simply did not bring this particular issue squarely before his Honour.

88 The factual context in MNX was an application by a police officer (TNV) to withdraw the application for the protection of SDW (the AFM) and an infant son.[46] The application for leave was refused. There were other orders made allowing MNX leave to vary and seek revocation of other FVIOs made. The grounds for judicial review of the refusal for leave to withdraw were primarily based on unreasonableness and denial of procedural fairness.[47] His Honour discussed a number of cases in which leave to withdraw or discontinue were considered. He noted that where leave is required, a key concern is whether the grant of leave may result in injustice, particularly to the other parties to the proceeding and to the wider community.[48] He also discussed what factors must be considered[49] and referred to a number of particular cases which illustrate the application of the principles.[50] In his analysis of whether the Magistrate's refusal to grant leave to withdraw was legally unreasonable, he stated as follows:

In the present case, the magistrate had a general discretion under rule 4.08 of the Rules as to whether she granted leave to withdraw. There are no criteria in r 4.08. The magistrate was a highly experienced magistrate family violence protection jurisdiction. The Court should be slow to conclude that the decision was unreasonable or elected evident and intelligible justification.

It is plain from her reasons that the magistrate was of the view that TNV, and Victoria Police generally, should not be permitted to withdraw from the intervention proceeding, at least at that time.[51]

89 The reasons given in the ruling were then in summary set out.[52] His Honour accepted that the Magistrate's reasons for refusing the police application to withdraw were reasonable, evident and intelligible; which was the test he was required to apply in his assessment of the judicial review before him. He was not required to consider, nor did he interrogate, the power to substitute a party.

90 The second ground of review was procedural fairness. Whilst Garde J was satisfied there was a breach of procedural fairness in refusing rather than adjourning TNV's application for leave to withdraw, the breach of procedural fairness did not result in any practical injustice.[53] Again, this did not require his Honour to determine the question of whether there was power to substitute a party as applicant, which is the legal question raised directly before me in this proceeding. Similarly, the third ground of review did not raise the same issue as is required to be determined by me; it pertained to unrelated procedural arrangement.[54]

91 Ultimately, the substitution issue was not part of the ratio decidendi of Garde J. It is evident in the text of his Honour's decision that he assumed the learned Magistrate was correct on the point, made reference to that in passing, and then focussed on the specific question before him.[55] These observations were obiter and not binding on the proceeding before me.

92 The doctrine of precedent obligates courts lower in the judicial hierarchy to follow the decisions of higher courts. The principle of stare decisis is concerned with encouraging judicial officers to follow the decisions of their peers at the same level in the judicial hierarchy in order to achieve "consistency, continuity and predictability in the law" whilst enabling the common law to develop where corrections may be needed over time.[56]

93 With both the doctrine of precedent and the principle of stare decisis, what stands to be followed is the ratio decidendi of the authority under consideration.[57] The ratio of MNX addresses a distinct issue (the operation of r 4.08 itself), and therefore there is no reason that the Court should be compelled to follow that case on the issue of amendment of a document by substitution. The expression of opinion by the Magistrate below as to the lack of a substitution power is similarly not authoritative on the point. This is of course not meant as any criticism of the learned Magistrate, who is well-experienced in matters of family violence, but rather a consequence of the principles of precedent.

94 In summary, I consider that there is no binding authority on the issue of a substitution power in the FVP Act or Rules. As such, it is open to me to conclude that there is power to allow an amendment to an FVIO application by the substitution of one party in a proceeding (the police officer party) for another (the AFM) and that this power is grounded in r 15.03. I do not consider a request to amend an application by the substitution of a police officer applicant for another party (such as the AFM here) as being repugnant to the content or scheme of the FVP Act nor the Rules.

95 If the learned Magistrate in the exercise of the discretion under r 15.03 considers that substitution would be consistent with the determination of the issues in dispute between the parties and would avoid duplication of proceedings, the power may legitimately be exercised. However, as is the case with a grant of leave under r 4.08, the exercise of that power requires the consideration of the purposes of the legislation and its protective nature (and in that sense only, MNX is of some assistance in examining that protective character).

96 If, theoretically, there was no substitution power or substitution was otherwise refused, the most obvious alternative would be to direct the AFM to the FVIO counter at the Magistrates' Court to commence a new application and issue a new interim FVIO. I am of the view that this practice, while clearly valid, would create a wholly new proceeding and would not avoid duplication of proceedings. Rather, it is highly likely that course would result in duplication. Whilst that may not always be the case, the task of the Magistrate in a substitution application is to consider that likelihood as a factor,[58] as well as the overarching purposes of the FVP Act set out in ss 1 and 2.

97 The supervisory or case management role under the FVP Act is an important one. Whether the discretion being considered by the court is that under r 4.08 for withdrawal of a proceeding with leave, or amendment of the application under r 15.03, the same principles in respect of a grant of leave will apply. The specific considerations set out in the relevant rule and the overarching purposes of the legislation, including the safety of the AFM, must be considered.

98 Accordingly, Ground 2 is made out and I shall direct that the MCV proceed to hear and determine the FVIO proceedings in accordance with law. I do not consider that it is appropriate for this Court to make the amendment to the application with the AFM substituted as applicant in that proceeding. This is to be determined as part of the remittal.

99 In respect of Ground 1, I have found that the grant of leave to withdraw the application was not made and I will make the declarations sought in the originating motion.

100 In respect of Ground 2, I have found that the ground is made out and the matter is remitted for hearing and determination in accordance with law.

101 The plaintiff submitted that I should consider that costs of the judicial review follow the event and make orders in a manner similar to this Court in DDD v Magistrates' Court of Victoria ('DDD').[59] The questions which arose in this proceeding are of general importance to the operation of family violence matters in the Magistrate's Court.

102 DDD also related to a procedural error made by a Magistrate in an FVIO matter, however the error was different in that it related to the variation of a final FVIO after it had expired. Justice Croucher considered that as costs should follow the event, and as the plaintiff had succeeded in his review and was the one disadvantaged by the Magistrate's error, the third defendant (the AFM in that case) should bear the costs. However, his Honour recognised that it was unfair in the circumstances of a family violence matter for a vulnerable party such as the AFM to actually have to pay those costs. Therefore, whilst the costs order was made, his Honour made a further order granting the third defendant an indemnity certificate pursuant to ss 4 and 5 of the Appeal Costs Act 1998 (Vic).

103 I am of the preliminary view that an order consistent with the approach taken by Croucher J in DDD would be appropriate in this case.

104 I note that the Hardiman letter filed by the MCV requested that they be heard should the Court consider ordering costs against them. The Hardiman letter filed on behalf of the second defendant did not request to be heard on costs.

105 This is a case where costs should follow the event. However, I do not consider it appropriate in the circumstances to award costs against any or all of the defendants without giving them an opportunity to be heard. I will make a direction that the parties provide any submissions in respect of costs in writing within 14 days.

[1] Magistrates' Court proceeding number L12164429.

[2] Transcript of Proceedings, [case name omitted], (Broadmeadows Magistrates' Court, L12164429, Grinberg M, 15 July 2021), 2, lines 9-23 ('Grinberg Directions Transcript').

[3] Family Violence Protection Act 2008 (Vic), s 74(1) ('FVP Act').

1. [4] See 'Affidavit of [Third Defendant]', filed 21 October 2022 in NBT v Magistrates' Court of Victoria & ors (Supreme Court of Victoria, S ECI 2022 02902), [4]; See also Grinberg Directions Transcript, n 2, 2, line 19.

[5] Grinberg Directions Transcript, n 2, 2, lines 9-25.

[6] Grinberg Directions Transcript, n 2, 10, line 33.

[7] See, e.g., Certified Extract of the Broadmeadows Magistrates' Court Register, L12164429, 12 November 2021, exhibited in the 'Affidavit of Justin Riazaty', filed 1 August 2022 in NBT v Magistrates' Court of Victoria & ors (Supreme Court of Victoria, S ECI 2022 02902), 30.

[8] Transcript of Proceedings, [case name omitted], (Broadmeadows Magistrates' Court, L12164429, Masood M, 4 April 2022), 2, lines 2-3.

[9] Transcript of Proceedings, [case name omitted], (Broadmeadows Magistrates' Court, L12164429, Masood M, 2 June 2022), 17, ruling commences at line 26.

[12] 'Submissions of the Third Defendant', filed 18 January 2023 in NBT v Magistrates' Court of Victoria & ors (Supreme Court of Victoria, S ECI 2022 02902), [13].

[13] 'Plaintiff's Outline of Submissions', filed 9 December 2022 in NBT v Magistrates' Court of Victoria & ors (Supreme Court of Victoria, S ECI 2022 02902), [2] ('Plaintiff's Submissions'); see also 'Amended Originating Motion', filed 26 October 2022 in NBT v Magistrates' Court of Victoria & ors (Supreme Court of Victoria, S ECI 2022 02902), 3.

[14] See e.g., Project Blue Sky Inc v Australian Broadcasting Authority (1998) 1994 CLR 355; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27.

[15] [2017] HCA 34.

[16] Ibid, 14 (Kiefel CJ, Nettle and Gordon JJ).

[17] The FVP Act also contains a preamble which states that Parliament recognises certain principles concerning non-violence as a societal value and recognises certain common features of family violence.

[19] Magistrates' Court (Family Violence Protection) Rules 2018 (Vic), r 4.08(1) ('FVP Rules').

[20] Victoria, Parliamentary Debates, Legislative Assembly, 26 June 2008, 2644 (Mr Hulls).

[21] See for example, the notes to sections 108 and 113.

[22] The Governor in Council has similar powers to create regulations per ss 210B and 211, however whilst these powers are framed in broad terms they have thus far been utilised for higher-level and specific regulatory purposes (such as the surrender of firearms per the Family Violence Protection Regulations 2018 and the requirements for certain agencies to engage in information sharing per the Family Violence Protection (Information Sharing and Risk Management) Regulations 2018). There is not a piece of legislation created by the Governor in Council which has been identified which is capable of being a 'candidate' for the purposes of the present review.

[23] Note: Section 108 of the FVP Act sets out that an application to vary, revoke, or extend a FVIO may be made to the Court by a party and notes the definition of party in s 4 of the FVP Act. Section 109 specifies additional requirements for an application made by a respondent to a FVIO and s 110 has additional requirements where the application is made by a police officer.

[24] Plaintiff's Submissions, n 13, [5].

[26] [2022] VSC 592 ('MNX').

[28] It should be noted that MNX was decided after the facts in the present matter arose, whilst this matter was making its way through the pre-trial process.

[29] Plaintiff's Submissions, n 13, [14].

[30] Third Defendant's Submissions, n 12, [6].

[31] (1986) 162 CLR 24, 39-40.

[33] Plaintiff's Submissions, n 13, [18]

[37] See e.g., Barnes & Co Ltd v Sharpe [1910] HCA 26; (1910) 11 CLR 462, 482.

[41] The high level of knowledge and experience of Her Honour Magistrate McCarthy in the family violence jurisdiction was emphasised.

[45] Rule 4.05 sets out specific requirements for an application to be made under s 100 and 106.

[56] Sir Anthony Mason, 'The use and abuse of precedent' (1988) 4 Australian Bar Review 93, 98-99.

[58] As well as the other factors set out in r 15.03.

[59] [2023] VSC 89.