Plaintiff v Defendants

(a) the refusal of the magistrate to grant TNV's application for leave to withdraw was legally unreasonable when regard is had to:

(i) the concessions made by TNV as to the absence of a risk that MNX was likely to commit family violence;

(ii) the failure of the Court to receive evidence from TNV that there was no risk that MNX was likely to commit family violence; and

(iii) the unchallenged submissions made by MNX in support of the application for leave to withdraw ('Ground 1');

(b) in refusing TNV's application for leave to withdraw, the magistrate fell into jurisdictional error in circumstances where:

(i) MNX and TNV were denied procedural fairness when they were not permitted to call available evidence in support of the application to withdraw; and

(ii) the magistrate failed to have any (or any proper) regard to written submissions filed by MNX in support of the application to withdraw ('Ground 2'); and

(c) the magistrate failed to properly exercise jurisdiction in granting MNX leave to make the revocation and variation applications but determining to hear and determine those applications at the same time as the application for a final order ('Ground 3').

(a) an order in the nature of certiorari quashing the order of the Magistrates' Court on 10 March 2022 refusing TNV's application for leave to withdraw; and

(b) an order in the nature of prohibition preventing the Magistrates' Court from hearing and determining MNX's revocation and variation applications at the same time as the application for a final intervention order.

33 In this Court, TNV actively opposed MNX's application for judicial review, as did SDW. This was despite the fact that it was TNV's application to withdraw that was refused in the Magistrates' Court.

34 In the preamble to the Act, Parliament has set out the principles that underpin the Act. They are:

(a) that non-violence is a fundamental social value that must be promoted;

(b) that family violence is a fundamental violation of human rights and is unacceptable in any form;

(c) that family violence is not acceptable in any community or culture;

(d) that, in responding to family violence and promoting the safety of persons who have experienced family violence, the justice system should treat the views of victims of family violence with respect.

In enacting this Act, the Parliament also recognises the following features of family violence -

(a) that while anyone can be a victim or perpetrator of family violence, family violence is predominantly committed by men against women, children and other vulnerable persons;

(b) that children who are exposed to the effects of family violence are particularly vulnerable and exposure to family violence may have a serious impact on children's current and future physical, psychological and emotional wellbeing;

(c) that family violence -

(i) affects the entire community; and

(ii) occurs in all areas of society, regardless of location, socioeconomic and health status, age, culture, gender, sexual identity, ability, ethnicity or religion;

(d) that family violence extends beyond physical and sexual violence and may involve emotional or psychological abuse and economic abuse;

(e) that family violence may involve overt or subtle exploitation of power imbalances and may consist of isolated incidents or patterns of abuse over a period of time.

35 The purpose of the Act is set out in s 1 and 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.

36 Section 2 provides that the purpose of the Act is to be achieved 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.

37 In the Second Reading speech for the bill to make the Act, the Attorney-General said:

Interim intervention orders are designed to provide short-term, speedy protection to victims of family violence until the court can hear all the evidence and make a final determination. An interim intervention order can be made:

to ensure the safety of the affected family member

to preserve the affect family member's property

to protect a child who has been subjected to family violence committed by the respondent.

Interim intervention orders can be made without the respondent present but are only effective once they are served on the respondent. In appropriate circumstances, police can use their holding powers to assist with serving the respondent.[5]

38 Section 4 is the definitions section and contains the following relevant definitions:

'affected family member' means the following persons -

(a) a person the subject of an application for a family violence intervention order to protect the person or the person's property;

(b) a person for whom a police officer intends to make an application referred to in section 13(1)(a) or 13A(1)(a) to ensure the safety of the person...;

'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;

39 Section 53 provides for the Magistrates' Court to make interim orders:

(1) The court may make an interim order if -

(a) a person has applied to the court for a family violence intervention order and the court is satisfied, on the balance of probabilities, that an interim order is necessary pending a final decision about the application -

(i) to ensure the safety of the affected family member; or

(ii) to preserve any property of the affected family member; or

...

(4) The court may make an interim order at any time after the making of an application for a family violence intervention order and before the final decision about the application is made, and may do so whether or not the court has previously made or refused to make an interim order.

40 Section 59 provides that if a court makes an interim order, the court must ensure that the hearing is listed for decision about the final order 'as soon as practicable'.

41 Section 60 provides for interim orders to expire in certain circumstances and is in the following form:

(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.

42 Section 65(1) provides that subject to the Act, the court may inform itself in any way it thinks fit, despite any rules of evidence to the contrary.

43 Section 74(1) provides that a 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.

44 Applications to vary or revoke a family violence intervention order are made under Part 4 Division 8 of the Act. Section 100 provides:

(1) The court may order the variation or revocation of a family violence intervention order on -

(a) an application under this Division; or

...

(2) In deciding whether to make an order under subsection (1), the court must have regard to all the circumstances of the case and, in particular, the following -

(a) the applicant's reasons for seeking the variation or revocation;

(b) the safety of the protected person;

(c) the protected person's views about the variation or revocation;

(d) whether or not the protected person is legally represented;

...

(3) If the court decides not to grant an application for the revocation of a family violence intervention order, the court may instead order the variation of the family violence intervention order in the way the court considers appropriate.

45 Section 102 sets out the decisions that a court must make before varying or revoking a family violence intervention order. It is in these terms:

(1) Before varying or revoking a family violence intervention order, the court must decide whether -

(a) there has been any change in the need to protect another person protected by the order from being subjected to family violence by the respondent for the family violence intervention order; and

(b) there are any other persons who, since the order was made, have become family members of the respondent for the family violence intervention order or protected person; and

(c) there are any Family Law Act orders in existence in relation to -

(i) where and with whom a child who is a person referred to in paragraph (a) or (b) lives; or

(ii) the respondent for the order spending time with or communicating with the child.

(2) The court may refuse to vary or revoke the family violence intervention order, or may vary the order in a way that differs from the variation sought in the application, if the court is satisfied, on the balance of probabilities, that it is necessary to do so to ensure the safety of another person protected by the order.

46 Section 108 provides for applications to vary or revoke family violence intervention orders to be made by certain specified persons including, under s 108(1)(a), a party to the proceeding in which the order was made.

47 Section 109 makes provision for leave to be obtained by a respondent to a family violence intervention order before the respondent can make an application for a variation or revocation of a family violence intervention order. Section 109 provides:

(1) For the purposes of section 108(1)(a), the respondent for a family violence intervention order may apply for the variation or revocation of the order only if the court has given leave for the respondent to make the application.

(2) Except as provided by subsection (2A), the court may grant leave under subsection (1) only if the court is satisfied that -

(a) there has been a change in circumstances since the family violence intervention order was made; and

(b) the change may justify a variation or revocation of the order; and

(c) in the case of an interim order, it is in the interests of justice that the application be determined immediately, rather than waiting for the hearing of the application for the final order.

(2A) In the case of an interim order made when the respondent was not present -

(a) the court may grant leave under subsection (1) if the court is satisfied that it is in the interests of justice to do so, having regard to the reasons the respondent was not present when the order was made; and

(b) if the court grants leave, it may, instead of varying or revoking the order, set aside the order if the court is satisfied that there are exceptional circumstances that justify setting aside the order.

(2B) Subsection (2A) applies only if the respondent seeks leave within 21 days after the day on which a copy of the order was served on the respondent.

(2C) The court may extend the time referred to in subsection (2B) if the court is satisfied that there are exceptional circumstances.

...

48 The explanatory memorandum to the Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018 (Vic) (Act No 33 of 2018) described the addition of s 109(2)(c) to the Act in these terms:

In addition to the existing 2 matters in s 109(2), the court must also be satisfied that it is in the interests of justice that the application be determined immediately, rather than waiting for the final order hearing. This new requirement will act as a filter to manage these applications so that they do not undermine the final order hearing and are not used as an alternative means to seek review of an interim order decision where there is no appeal right.

49 Section 114(1) of the Act provides that a party to a proceeding under the Act may appeal against an order of the court in the proceeding or a refusal of the court to make an order. The appeal is relevantly to the County Court and is by way of a rehearing.[6]

50 Section 114(2)(c) of the Act provides that there is no appeal against an interim order or a refusal to make an interim order.

51 Regulation 4.08 of the Rules deals with the withdrawal of applications for family violence intervention orders. It provides:

(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.

52 The purposes of the Magistrates' Court of Victoria include purposes intended to ensure fairness, the prompt resolution of court proceedings and the optimum use of the Court's resources. Section 1 of the Magistrates' Court Act 1989 (Vic) ('MC Act') provides:

The main purposes of this Act are -

...

(c) to provide for the fair and efficient operation of the Magistrates' Court; and

...

(e) to allow for the Magistrates' Court to be managed in a way that will ensure -

(i) fairness to all parties to court proceedings; and

(ii) the prompt resolution of court proceedings; and

(iii) that optimum use is made of the Court's resources.

53 Section 109 of the MC Act provides for parties to civil proceedings in the Magistrates' Court to appeal to the Supreme Court on a question of law from a final order of the Court.[7] Section 109 makes no provision for appeals to the Supreme Court from orders of the Magistrates' Court other than final orders. Orders of the Magistrates' Court other than final orders can be reviewed by the Supreme Court in its judicial review jurisdiction.

(1) The Court may, on the application of a party to a proceeding... or without any such application, adjourn the hearing of the proceeding -

(a) to such times and places; and

(b) for such purposes; and

(c) on such terms as to costs or otherwise -

as it considers necessary or just in the circumstances.

55 A right to withdraw proceedings existed at common law and in equity.

56 In Schipp v Herfords Pty Ltd, Samuels JA, sitting in the New South Wales Court of Appeal, observed:

...originally the right to withdraw and come again existed both at common law and in equity. In more recent times statutes and rules of court have fettered the right.[8]

57 In Boal Quay Wharfingers Ltd v King's Lynn Conservancy Board, Salmon LJ observed:

Whenever an application is made to a tribunal or to the courts for that matter, as a rule, there is nothing to compel you to go on with it. You are entitled to withdraw your application at any stage... It is quite true that the legislature sometimes, for policy reasons, lays down that an application made under a statute cannot be withdrawn in specified circumstances... But quite independently of authority it seems to me to follow on principle that in the absence of a statutory prohibition, once you have made an application you can always withdraw it; and once you have withdrawn the application, it ceases to exist.[9]

58 The position is different where a statute or court rule requires the grant of leave to withdraw or discontinue. 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.

59 In Ann Street Mezzanine Pty Ltd v Beck, Kenny J referred to a court rule which provided that a party making a claim for relief may discontinue 'at any time - with the leave of the Court', and said:

Generally speaking, the Court will grant an application for leave to discontinue, since it is undesirable that an applicant be compelled to continue litigation against the applicant's will. That said, leave is not granted as a matter of course.[10]

60 Likewise in Trade Practices Commission v Manfal Pty Ltd (No 3), Lee J stated:

It may be accepted that an application for leave to discontinue proceedings against a respondent will normally be granted. However, that does not mean that such an order is granted as a matter of course...

The discretion to grant leave is unfettered... The court will give consideration to the need to refrain from compelling a party to litigate against its will but will also consider the extent to which the proceedings have developed and whether discontinuance against one respondent may impose injustice on another respondent by removing an advantage that respondent may otherwise enjoy in the proceedings or by imposing a disadvantage. In considering the undesirability of an applicant being forced to continue litigation unwillingly, it is relevant to have regard to whether the discontinuance would make any difference to the burden of litigation undertaken by the applicant and whether the application to discontinue results from a conclusion that the litigation cannot succeed against that respondent or is inspired by other reasons.

The requirement of the Federal Court Rules that, in the absence of consent of all parties, discontinuance of litigation against a party only be permitted by leave of the court contemplates a judicial review of all relevant circumstances and the satisfaction of the court that the grant of leave is proper in all the circumstances. In some cases the court may determine that a grant of leave to discontinue should be attended with conditions and in a rare case the court may determine that the only appropriate order is to refuse the leave sought.[11]

61 The factors that a court is bound to consider on an application for leave to withdraw or discontinue are determined in accordance with established principle. In an oft-quoted passage in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J said:

What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statue expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.[12]

62 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.

63 The decided cases illustrate the application of these principles.

64 In AB v Magistrates' Court at Heidelberg, a magistrate refused to make an intervention order by consent on the basis that she had obligations under the Act to look at whether a child was possibly at risk and that this could not be done in the circumstances.[13]

65 On appeal, Mukhtar AsJ observed that the magistrate explained her reasons for not making a consent order. Those reasons had, as their foundation, the necessity as dictated by the statute to have regard to the interests of the child. Altering the status quo by consent posed a risk to the child which the magistrate was not willing to countenance. The allegations could still be tested at a contest hearing.[14]

66 In MN v OP, the Court was faced with an unusual set of circumstances. OP had obtained an interim intervention order against MN in the Magistrates' Court. OP and MN had two children who were protected by the order. MN sought declarations in the Supreme Court that the interim intervention order and related decisions were not made in accordance with law. OP then made an oral application for, and obtained leave from the Magistrates' Court, to withdraw the application for an intervention order. MN sought to challenge this and other orders of the Magistrates' Court.[15]

67 During the oral application to withdraw his application for an intervention order, OP, who was the father, explained to the magistrate that the children had not seen their mother, MN, for over five months, and that child protection authorities were involved. He said that the authorities expected him to continue to block MN's contact with the children until decisions were made by the Family Court. He intended to apply to vary the contact orders to ensure that MN's contact with the children would be supervised.

68 The magistrate described OP's statement as a detailed explanation, and said that the Magistrates' Court was available if he was concerned about the safety of the children. The magistrate added that it appeared that the family law proceedings and departmental supervision were providing coverage for OP's protective concerns.

69 On appeal, Ginnane J noted that some of the grounds on which MN relied depended on the interpretation of r 4.08 of the Rules.[16] Rule 4.08(2)(b) enabled a person attending court to make an oral application to withdraw the application for an intervention order. Unlike r 4.08(2)(a), it did not require any notice to be given to the respondent.

70 Ginnane J held that MN was not denied procedural fairness by the magistrate despite the absence of notice to MN. His Honour considered that the explanation why r 4.08(2)(b) permitted an oral application for leave to withdraw to be made to the Court without notice to the respondent may lie in the public interest in the speedy end to allegations concerning family violence when applicants did not wish to pursue family violence orders.[17]

71 In Pizanias v Sultana, Norrington JR had to determine in the context of the Domestic and Family Violence Act 2007 (NT), whether the police required leave to withdraw an application. His Honour held that the effect of r 5.18 of the Local Court (Civil Jurisdiction) Rules 1998 (NT) was to abrogate the common law right to discontinue and that all judicial determinations under that Act required the Court to consider the safety and protection of the protected person as having paramount importance.[18] Norrington JR refused leave for the Commissioner of Police to withdraw the proceeding given the opposition of the protected person, determining that it would be contrary to the objects of the Act and the interests of justice to allow a police domestic violence order to be withdrawn or discontinued without the protected person being given an opportunity to present a case as to why the police domestic violence order should be confirmed.[19]

72 Similar principles apply in respect of protection applications relating to children. In J v Lieschke, the High Court upheld the rights of parents to have the opportunity to be heard where the interests of the child were affected and where it was practicable to do so.[20] In Secretary of the Department of Human Services v A Father (a pseudonym), Nathan J held that the Secretary required leave of the Children's Court to withdraw or discontinue a protection application relating to a child made under the Children and Young Persons Act 1989 (Vic).[21]

Ground 1 - was the magistrate's refusal to give leave to withdraw the intervention proceeding legally unreasonable?

73 MNX submitted that the magistrate's decision to refuse TNV leave to withdraw the application for an intervention order was legally unreasonable for the following main reasons:

(a) the appropriateness of the police risk assessment was the central issue in dispute;

(b) the magistrate stated that she would fix the proceeding for hearing and deal with the issue of standing and the police application for leave to withdraw;

(c) there was evidence available for the magistrate to hear that had a material impact on the exercise of her discretion;

(d) the refusal of the application for leave to withdraw was akin to refusing to permit the calling of the evidence; and

(e) if the magistrate was of the view that she did not have time to appropriately digest the written submissions and hear the evidence of the risk assessment, then the appropriate course was to adjourn the matter.

74 TNV submitted that the magistrate's decision not to permit TNV to withdraw was not legally unreasonable for the following main reasons:

(a) the magistrate was of the view that she did not have power to substitute a party;

(b) TNV was not represented at the hearing on 28 February 2022 and sought leave to withdraw at the hearing on 10 March 2022;

(c) the effect of the withdrawal of TNV as a party would be to end the family violence intervention order under s 60(e) of the Act;

(d) the magistrate based her decision to refuse TNV's application to withdraw on the basis that there were contested issues relating to risk and safety of the protected persons that had to be determined;

(e) the magistrate was concerned with the role of police in relation to applications of this kind and the Court's role in administering the Act;

(f) TNV's evidence could not show that there were not contested issues of the type mentioned by the magistrate; and

(g) the contest was between TNV's assessment of risk and SDW's assessment of risk.

75 SDW relied on the magistrate's ruling,[22] and submitted that:

(a) there were evident and intelligible reasons why the Court should refuse TNV leave to withdraw as a party from the intervention proceeding; and

(b) the magistrate made it clear that although she was refusing leave for TNV to withdraw, she was not dismissing MNX's applications to vary or revoke the interim order.

76 In Minister of Immigration v Li, the High Court reviewed the concept of legal unreasonableness. The plurality held:

The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it...[23]

77 Commenting on the reasonableness of the exercise of a discretion, their Honours observed:

Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.[24]

Review by a court of the reasonableness of a decision made by another repository of power 'is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process' but also with 'whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law'.[25]

79 The 'evident and intelligible justification' test was followed and applied by the High Court of Australia in Minister for Immigration and Border Protection v SZVFW,[26] and ABT17 v Minister for Immigration and Border Protection.[27]

80 In the present case, the magistrate had a general discretion under r 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 in the family violence protection jurisdiction. The Court should be slow to conclude that her decision was unreasonable or lacked an evident and intelligible justification.

81 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. The reasons given in the ruling were, in summary, that:

(a) the proceeding was hotly contested;

(b) the purposes of the Act were beneficial and intended to maximise the safety of children and adults who had experienced family violence, to prevent and reduce family violence and promote the accountability of perpetrators;

(c) the Women's Legal Service Victoria on behalf of SDW opposed the police application for leave to withdraw and submitted that the risk was ongoing in circumstances where interim orders had been made in the Family Court for supervised contact between MNX and the infant son;

(d) the Women's Legal Service Victoria on behalf of SDW submitted that the police risk assessment was cursory and not focussed on the ongoing risk; and

(e) having regard to the contested issues relating to risk and safety, and the contested issues in relation to the risk to the infant son, the police role in relation to intervention applications, and the Court's role under the Act, the police application for leave to withdraw should be refused.

82 I accept SDW's submission that the magistrate's reasons for refusing the police application to withdraw are reasonable, evident and intelligible. They reflected her view of the best interests of justice in the circumstances of the case. In the magistrate's view, Victoria Police should not walk away from the proceeding, but should actively participate, give evidence and support decision-making in accordance with the police role in family violence intervention proceedings generally. There is nothing irrational or inappropriate about such a decision.

83 The magistrate's decision not to grant TNV leave to withdraw from the proceeding was plainly within the range of possible acceptable outcomes, and was a consequence of the magistrate's assessment of the course that TNV and Victoria Police should follow. The magistrate accepted that there was a contest between the parties and gave directions in the order as to what the parties were to do. It was not possible for the evidence and submissions to be heard on 10 March 2022. I will consider procedural fairness issues under Ground 2.

Ground 2 - did the magistrate deny MNX procedural fairness?

(a) the magistrate's decision to refuse the application for leave to withdraw without hearing evidence on the appropriateness of the risk assessment undertaken by Victoria Police was a denial of procedural fairness;

(b) if the application to withdraw had been granted, the interim order would have been at an end;

(c) an acting sergeant of Victoria Police had made a detailed statement and was available to explain what steps had been taken, and how the conclusion had been reached;

(d) MNX was denied an opportunity to respond to the contention by SDW that the risk assessment undertaken by Victoria Police was cursory; and

(e) if the magistrate had not had sufficient time to comprehend the written submissions that had been filed, or to hear evidence on the appropriateness of the risk assessment, the appropriate course was to adjourn the application for leave to withdraw.

(a) interim orders can be made on scant evidence without the presence of a respondent, as exemplified by the fact that:

(i) an interim family violence intervention order may be made whether or not the respondent has been served with a copy of the application, and whether or not the respondent is present (s 54);

(ii) the evidentiary requirements to obtain an interim order are limited and subject to exceptions (s 55(1));

(iii) the affected family member is not obliged to give evidence before an interim order is made (s 55(2));

(iv) a magistrate can waive the requirement for oral evidence or an affidavit (s 55(1)(b));

(v) the court may inform itself in any way it thinks fit, despite any rules of evidence to the contrary (s 65(1)); and

(vi) the court may refuse to admit, or may limit the use to be made of, evidence if it is just and equitable to do so, or if the probative value of the evidence is outweighed by the danger that the evidence may be unfairly prejudicial to a party, or misleading or confusing (s 65(3));

(b) a lower requirement for procedural fairness applies under the Act and permits the Court to act on an interim basis on imperfect or untested evidence;

(c) ss 54, 55 and 65 of the Act provide context and moderate the requirements for procedural fairness when exercising interim order powers;

(d) the requirements of procedural fairness for final orders are significantly higher than interim orders; and

(e) the acting sergeant's risk assessment would have confirmed the magistrate's assessment that the proceeding was strongly contested.

87 SDW submitted that there was no denial of procedural fairness as:

(a) there was no obligation to hold a hearing in which TNV was called to give evidence and be cross-examined;

(b) the context of procedural fairness in the Magistrates' Court did not require the Court to facilitate the giving of viva voce evidence and cross-examination on an interlocutory application under r 4.08;

(c) interlocutory applications were ordinarily made on affidavit evidence without cross-examination;

(d) the Magistrates' Court's discretion was flexible enough to permit the Court to proceed with the application without hearing viva voce evidence, or allowing cross-examination; and

(e) it was reasonably open to the Court to proceed as it did by not allowing TNV to exit the proceeding when the extent of risk was contested.

88 The first issue that arises is whether the requirements of procedural fairness apply to the magistrate's decision under r 4.08(1) of the Rules to refuse leave to TNV to withdraw his application for an intervention order. As the magistrate noted, TNV's application for leave to withdraw was made by way of oral application. If the application for leave to withdraw was granted, the interim order would expire.[28]

89 The application of the requirements of procedural fairness to court proceedings is well established. In Roberts v Harkness, the Court of Appeal, speaking of the decision of a judge on appeal from the decision of a magistrate on unlicensed driving charges under the Road Safety Act 1986 (Vic), said:

As his Honour correctly stated, it is the fundamental obligation of every court to ensure a fair hearing for the parties before it. The High Court recently affirmed, in Condon v Pompano Pty Ltd, that procedural fairness is 'an essential attribute of a court's procedure'.

...

The existence of the fair hearing right being uncontroversial, the critical question is: 'What does the duty to act fairly require in the circumstances of the particular case?' Natural justice is 'fair play in action'. As Gleeson CJ said in Lam:

Fairness 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.

It is an essential requirement of a fair hearing that each party be given a 'reasonable opportunity' of presenting its case, whether in writing, or orally, or both. This will ordinarily include being informed of the case to be advanced by the opposing party, and having an opportunity to respond.

Axiomatically, what is 'reasonable' for this purpose will depend on the circumstances of the case. Matters to be taken into account in determining the practical content of fairness in the particular case will include

• the nature of the decision to be made;

• the nature and complexity of the issues in dispute;

• the nature and complexity of the submissions which the party wishes to advance;
• the significance to that party of an adverse decision ('what is at stake'); and
• the competing demands on the time and resources of the court or tribunal.

One of the key considerations in determining the content of fairness in a particular case is the statutory framework governing the decision-making process. This is most obviously the case with administrative decision-makers whose powers are conferred by statute, but it is also true of courts. As the plurality said in Pompano:

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.

It is relevant, therefore, that the 'main purposes' set out in s 1 of the Magistrates' Court Act 1989 include the following:

(c) to provide for the fair and efficient operation of the Magistrates' Court; and

(d) to abolish inefficient and unnecessary court process and procedures; and

(e) to allow for the Magistrates' Court to be managed in a way that will ensure -

(i) fairness to all parties to court proceedings; and

(ii) the prompt resolution of court proceedings; and

(iii) that optimum use is made of the Court's resources.[29]

90 In Shrestha v Migration Review Tribunal, the Full Court of the Federal Court observed:

It is axiomatic that the primary judge was obliged to accord procedural fairness to the appellant.[30]

It is equally axiomatic that the requirements of procedural fairness include the provision of a reasonable opportunity for the appellant to present evidence and to make submissions.[31]

92 The Full Court commented on the pressure of high volume decision making in the migration jurisdiction observing that it was no fault of an individual litigant that there were thousands of other cases, and that high volumes of cases should, if anything, give rise to extra caution to ensure that no injustices were being done because of judicial workload pressures.[32]

93 In International Finance Trust Company Ltd v New South Wales Crime Commission, 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.[33]

94 In Assistant Commissioner Michael James Condon v Pompano Pty Ltd, 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.[34]

95 In MN v OP, Ginnane J observed that in an earlier decision, Harper J acknowledged that the Act abrogates procedural fairness in order to achieve its stated purposes.[35] Ginnane J was referring to Zion-Shalom v Magistrates' Court of Victoria (No 2), where Harper J said:

It is not for the court to prescribe, as conditions necessary if procedural fairness is to be accorded, conditions which are inconsistent with those prescribed by parliament. It seems to me that, were I to accede to the plaintiff's application for certiorari, I would fall into that trap.[36]

96 As counsel did not refer to MN v OP at the hearing of this proceeding, I invited written submissions from the parties concerning the decision. MNX submitted in substance that:

(a) Ginnane J did not find that there was no requirement under r 4.08 to afford procedural fairness to MN. Rather his Honour found that MN had not been denied procedural fairness; and

(b) even if r 4.08 does not require procedural fairness to be afforded to MNX, once her Honour had engaged with the parties about the issues that were in dispute on the withdrawal application, and explained the manner in which she proposed to deal with those issues, she was required to proceed in the manner that she said that she would and to hear the evidence from the acting police sergeant who had undertaken a risk assessment.

97 TNV submitted, with SDW adopting these submissions, that Ginnane J had observed that:

(a) the procedures established by the Act in respect of interim intervention orders depart from the usual rules of civil procedure.

(b) magistrates, like other judicial officers, have an ample discretion as to how a case should be managed, including determining the stage of the proceeding when it is appropriate to hear particular applications;

(c) the remedies under the Act were discretionary and it was critical to keep in mind that the magistrate was conducting a mention of the application, and lacked court time to hear any further applications that day; and

(d) r 4.08(2)(b) does not require notice of the withdrawal to be given to the respondent. As a decision of a judge of this Court, I should follow this decision unless satisfied that it is clearly wrong.[37]

98 In the present case, the application to withdraw was made orally on behalf of the police officer who obtained the interim order for the protection of SDW and the infant son. The application was made with the support of MNX but against the opposition of SDW, the affected family member, who was concerned about her own safety and that of their infant son. Both MNX and SDW were given notice of the application. Fairness and justice required that SDW and MNX be heard before such an application was summarily determined.

99 Police have very important functions and powers under the Act. They include the power to issue family violence safety notices with or without exclusion conditions, and to apply for intervention orders.[38] They include extensive enforcement powers.[39] Police daily apply for intervention orders against perpetrators so as to provide protection to affected family members and protected persons. Should a police officer subsequently seek to withdraw from an intervention proceeding, the affected family members, other than infants, must be informed of the application. Likewise, if practical, the perpetrator must be informed of the application so as to have the opportunity to be heard.

100 In the present case, while TNV's application to withdraw the intervention application was oral, both SDW and MNX were aware of the application and sought to be heard. Each was entitled to a reasonable opportunity of presenting a case, being informed of the case to be advanced by the opposing party, and having an opportunity to respond.[40] Each had already made submissions on the merits to the Court. There was a contested family violence risk assessment, and the likely prospect of differing evidence about incidents that had occurred in the past. The application was hotly contested.

101 I also accept that once her Honour had heard from each of the parties to the extent that she had available court time, procedural fairness was invoked. It was not open to disregard the requirements of procedural fairness in dealing with the applications before the Court.

102 The magistrate dismissed TNV's application to withdraw the intervention application without hearing evidence or submissions from the parties as to the application. The requirements of procedural fairness were not observed.

103 In a statement dated 9 March 2022, an acting police sergeant describes some of the factual issues that stood to be considered. The statement details an incident which occurred at 4:25am on 29 August 2020 resulting in the issue of a family violence notice and interim order on 1 September 2020. The incident was assessed by police as high risk based on the police internal family violence assessment tool. A charge of unlawful assault and making a threat to kill was subsequently finalised in a diversion program, following the withdrawal of the charge of make threat to kill. There were two subsequent family violence reports assessed as medium risk. Three charges of contravening an interim family violence order were withdrawn at court. A machete belonging to MNX was surrendered and destroyed. SDW had repeatedly stated that she believed that MNX took no responsibility for his actions and would continue his behaviour into the future. Despite the absence of subsequent incidents, SDW was still in fear and wanted the interim order continued. MNX had engaged in regular appointments with his GP and psychologist and was completing addiction counselling through two programs.

104 The statement was not tendered or tested before orders were made.

Was the denial of procedural fairness material?

105 In Minister for Immigration and Border Protection v SZMTA, a plurality of the High Court held that materiality was essential to the existence of jurisdictional error. A breach was material to a decision only if compliance could realistically have resulted in a different outcome.[41] The question of materiality of the breach was an ordinary question of fact in respect of which the applicant bore the onus of proof. Like any ordinary question of fact, it was to be determined by inferences drawn from evidence adduced on the application.[42]

106 The High Court subsequently affirmed this explanation of materiality in MZAPC v Minister for Immigration and Border Protection,[43] and in Nathanson v Minister for Home Affairs.[44]

107 MNX submitted that he was adversely affected by what occurred. He lost the opportunity of the benefit that s 60(e) of the Act gave him. If TNV withdrew, he would no longer be subject to the interim order, and the conditions of the interim order would no longer be operative. He would no longer be the subject of the intervention application and would not need to pursue the revocation and variation applications.

108 TNV submitted that if there was a breach of procedural fairness, it was not material. The contest was essentially between TNV's risk assessment and that of SDW. The failure to call police evidence could not have affected the outcome of TNV's application under r 4.08 of the Rules.

109 SDW submitted that while TNV's application to withdraw had been refused, the magistrate at the same time granted leave to MNX to proceed with his revocation and variation applications. The magistrate explained that the fact that the police application to withdraw had been refused did not impact on MNX's revocation or variation applications. The refusal to give TNV leave to withdraw the application did not end the proceeding. MNX was not deprived of the opportunity of success in the intervention proceeding once a proper hearing of the revocation and variation applications occurred.

110 I am satisfied that while there was a breach of procedural fairness by the magistrate in refusing, rather than adjourning, TNV's application for leave to withdraw, the breach of procedural fairness did not result in any practical injustice. This was because MNX was just as well placed after the refusal by reason of the grant of leave to him to apply for revocation or variation of the interim order. One door was closed, but another was opened. Compliance with the requirements of procedural fairness by adjourning TNV's application to withdraw would not realistically have resulted in a more advantageous position for MNX.

111 First, as the magistrate explained, because of the commitments of the Court on 10 March 2022, it was not possible to conduct a contested hearing on that day as to whether TNV should be granted leave to withdraw, or whether the interim order should be revoked or varied. The intervention proceeding had been placed in a mention list rather than a contest list and the magistrate simply did not have the time to undertake contested hearings of the leave applications. There was simply no realistic possibility that the contested hearings of the leave applications could be heard on the merits on 10 March 2022. TNV had earlier indicated that he was willing to remain in the matter for a short adjournment so that SDW could file her own application.

112 Secondly, by granting MNX leave to apply for revocation or variation of the interim order under s 109 of the Act, MNX was empowered to apply for the revocation or variation of the interim order in his own right. He was no longer dependent on TNV's prosecution of the withdrawal application. The grant of leave under s 109 of the Act was also beneficial to MNX in that it involved a finding that MNX's application for leave to revoke or vary the interim order should be determined immediately. By contrast, TNV's application for leave to withdraw could have been adjourned to the hearing of the application for final orders.

113 Thirdly, by reason of the leave to apply for revocation or variation granted by the magistrate, MNX was given control over the manner in which the revocation and variation applications were presented. He was no longer dependent on the attendance of the senior police lawyer or police witnesses at court. The senior police lawyer did not attend on 28 February 2022 until later in the day. TNV did not provide further and better particulars as directed by the Court. MNX was now the moving party seeking revocation or variation of the interim order.

114 Fourthly, the tests to be applied as to whether an interim order should be made, or should continue, are set out in ss 102(1)(a) and (c) of the Act. It made no difference on the facts of the case whether the contested hearing on the need for an interim order was conducted in the context of a police application to withdraw or the context of a revocation or variation application made by MNX.

115 Fifthly, the fact that MNX could no longer present a case on the coat-tails of TNV's application to withdraw was not a material disadvantage. While it may have been tactically attractive to do so, the magistrate was very experienced in the family violence protection jurisdiction and would not have been influenced or moved by this circumstance. As she said, the Court frequently heard affected family members arguing about the position adopted by Victoria Police.

116 Sixthly, the evidence likely to be called on a contested hearing of the application to withdraw was the same as would be called on the hearing of the revocation and variation applications. In both cases, the magistrate would have to consider whether the police risk assessment or SDW's risk assessment was correct and hear evidence from SDW, MNX and other witnesses of incidents involving SDW and MNX. There was no difference in the parties' respective prospects of success.

117 Seventhly, in the event that a hearing for final orders proved to be necessary, the test was that set out in s 74(1) of the Act viz whether the court was satisfied, on the balance of probabilities, that the respondent had committed family violence against the affected family member and was likely to continue to do so or do so again. The evidence at the hearing for final orders was likely to be similar to that before the court on the hearing of the application to withdraw or the revocation and variation applications.

118 MNX has the burden of proof as to materiality of the denial of procedural fairness as a matter of fact and I am not satisfied that he has discharged this burden. To the contrary, I am of the opinion that the failure by the magistrate to comply with the requirements of procedural fairness had very little (if any) material consequence adverse to MNX, and, as to time, was favourable. It could not realistically have resulted in a different decision at a contested hearing as to the continuing need for the interim order. Any opportunity that MNX may have lost by reason of the refusal of the application to withdraw was made good by the grant of leave to MNX to proceed with the revocation and variation applications, and the finding that these applications should be heard immediately. The change of moving party from TNV to MNX was not to MNX's disadvantage. The issues were the same, and there was no practical injustice to MNX when he became the moving party seeking revocation or variation of the interim order. The magistrate's decision avoided the need for SDW to make a fresh application in her own right seeking the same intervention orders, and the resulting delay and cost.

119 TNV has never complained before the magistrate or in this Court about the refusal of his application to withdraw the intervention proceeding. MNX submits that there was a failure to comply with the requirements of procedural fairness to him when TNV's application was refused. While I accept that there was a denial of procedural fairness, MNX's revocation and variation applications were simultaneously enlivened by the grant of leave under s 109(2) of the Act. This was done because SDW could not be substituted as the applicant in the intervention proceeding. The Court held under s 109(2)(c) of the Act that it was in the interests of justice that MNX's applications be heard immediately, rather than waiting for the hearing of the application for a final order. The contest hearing that was to be conducted by the magistrate was essentially the same whether the initiating application was TNV's application to withdraw or MNX's applications to revoke or vary the interim order. MNX became the moving party seeking revocation of the interim order rather than TNV.

120 I find that the failure to comply with procedural fairness did not cause MNX any material disadvantage or realistically affect the likely outcome of the intervention proceeding, either at the interim stage or the final stage.

Ground 3 - did the magistrate fail to properly exercise jurisdiction in granting MNX leave to make the revocation and variation applications but determining to hear and determine those applications at the same time as the application for a final intervention order?

(a) the magistrate granted leave to MNX to apply to make the revocation and variation applications and adjourned them to be heard and determined at the same time as the hearing to determine whether or not a final order ought be made;

(b) senior counsel for MNX drew the magistrate's attention to s 109(2)(c) of the Act which required a finding by the magistrate in granting leave to bring the revocation and variation applications that the applications be determined immediately rather than waiting for the hearing of the application for the final order;

(c) s 109(2)(c) contemplates that the application for revocation or variation will be heard and determined prior to, and separately from, the hearing of an application for a final order;

(d) the purpose of s 109 of the Act is to provide a mechanism for the Court to vary or revoke extant interim orders where circumstances change without being required to wait until the final determination; and

(e) the magistrate did not have the power to collapse the revocation and variation applications into a hearing about the making of a final order under s 74 of the Act.

(a) s 109(2)(c) imposes an additional requirement so that leave to apply for the variation or revocation of an interim order can only be granted if it is in the interests of justice that the application be determined immediately;

(b) the additional requirement in s 109(2)(c) does not limit the broad discretion that a magistrate has to manage cases to ensure that the parties get a fair hearing and that justice is done;

(c) magistrates have onerous and unpredictable caseloads with competing matters vying for court time that often involve the liberty of the subject and must be given priority;

(d) there is no reason in principle why an application to revoke an interim order cannot be heard at the same time as the final order, and there's good reason why they should be heard at the same time unless the interests of justice require otherwise;

(e) revocation applications should not be used as a de facto appeal process;

(f) there was no failure to exercise jurisdiction when the magistrate adjourned the revocation and variation applications notwithstanding the need to hear them promptly;

(g) this Court should not second guess a judicial officer's management of her court list, her caseload, the competing demands of each of her cases, or the need to list a particular application on any particular date for hearing; and

(h) the magistrate did not take into account irrelevant considerations or misconstrue the Act.

(a) there was no misconception by the Court in deferring the revocation and variation applications to the final hearing;

(b) where a court grants leave to bring an application, it is within the decisional freedom of the Court to decide whether the application is heard concurrently with, or separately from, the ultimate questions; and

(c) what the magistrate did was to make a listing decision in compliance with the statutory requirement in s 59 of the Act to list the application for a final order as soon as practicable.

125 The magistrate gave leave to MNX to make the revocation and variation applications under s 109(1) of the Act. This could only have been done if the court was satisfied under s 109(2) that:

(a) there had been a change in circumstances since the interim order;

(b) the change may justify a revocation or variation of the order; and

(c) it was in the interests of justice that the applications be determined immediately, rather than waiting for the hearing of the application for a final order.

126 Having found that it was in the interests of justice that the revocation and variation applications be determined immediately rather than waiting for the hearing of the application for the final order, it was appropriate and consequential that this finding was carried into effect in the order made by the magistrate. Orders and directions were necessary to the effect that the revocation and variation applications be listed for hearing as soon as possible and in advance of the hearing of the application for a final order.

127 Section 59 of the Act provides where an interim order is made, the court must ensure that the hearing is listed for a decision about the final order as soon as possible. As an interim order was made in this case, the Magistrates' Court was under a statutory duty to ensure that the hearing of the application for a final order was listed as soon as practicable.

128 Given the statutory duty of the Court under s 59 of the Act and the main purposes listed in s 1 of the MC Act, there could be no objection if the hearing of the application for a final order took place as soon after the hearing and determination of the revocation and variation applications as was convenient, and by the same magistrate. In this way, maximum efficient use would be made of the time of the magistrate and of court resources. All of the evidence received and submissions made in the hearing of the revocation and variation applications could be adopted as part of the evidence and submissions in the hearing of the application for a final order, assuming of course that the application for a final order was necessary.

129 In the ruling, the magistrate stated that the court would list the matter as soon as possible for a hearing of all matters. The order made on the same day gives various directions, and lists the matter for special mention so as to ascertain readiness for hearing and to fix a hearing date.

130 I accept TNV's submission that it is undesirable for this Court to become too deeply involved in listing arrangements and directions in the Magistrates' Court. Importantly, the effect of proceeding in this Court has been to delay the hearing and determination of the Magistrates' Court applications and proceeding for over six months. In my view, all that is necessary is to remit the intervention proceeding back to the Magistrates' Court for hearing and determination in accordance with this judgment and in accordance with law. It will then be necessary for the Magistrates' Court to determine what directions and hearing arrangements should be made. There is no need or warrant for a prerogative order.

131 For the reasons I have given, it is appropriate for the revocation and variation applications to be heard and determined first and as soon as possible. The hearing of the application for final orders should follow as soon as that can conveniently be arranged. It is likely to be convenient for the evidence and submissions in the revocation and variation applications to be taken as evidence and submissions in the application for final orders should the intervention proceeding progress to this stage.

133 This proceeding seeks to obtain judicial review of what are essentially procedural orders made by a magistrate in the course of an intervention proceeding. On many occasions, courts have spoken of the need to actively discourage fragmentation of the proceedings of inferior courts and tribunals, whether criminal or civil.[45] Appeals or applications for judicial review of interim or interlocutory decisions should be avoided wherever possible. There are strong considerations against the fragmentation of any proceeding by an application for judicial review.[46]

134 The reluctance of courts to grant leave to appeal or exercise discretion in favour of prerogative relief in relation to procedural decisions made in the course of a proceeding in an inferior court or tribunal is even stronger where there are rights of appeal provided by statute.

135 Here, MNX has a right of appeal to the County Court by way of rehearing.[47] MNX also has a right of appeal to the Supreme Court on a question of law from a final order of the Magistrates' Court.[48]

136 In Carroll v Browne, Richards J observed as to appeals to the County Court under the Act:

It is notable that s 114(1) provides a right of appeal against any order made in a proceeding under the FVP Act. It does not distinguish between interim orders and final orders, or any of the range of other orders that may be made under the FVP Act. All appeals are heard de novo; in no case is leave to appeal required.[49]

137 In Secretary to the Department of Premier and Cabinet v Hulls, the Court of Appeal stated in an application for leave to appeal:

Where the order sought to be appealed is interlocutory (or 'interim' in the terminology of the VCAT Act), there may be particular reasons, based in justice to both parties, for not granting leave to appeal. There are strong considerations against the fragmentation of any proceeding, whether it be criminal or civil. Where a court is invited to grant leave to appeal from an order which is simply interlocutory, the litigation will be interrupted by the appeal, if leave is granted. Usually it is better if litigation is left to run its course, the parties being remitted to such rights of appeal as they have at the end of the day. Not only does that ensure that the litigation is not unnecessarily interrupted and completion not delayed without warrant; it also ensures that any interlocutory dispute will be seen and adjudged in its final context. Indeed, in the context of the final judgment the interlocutory dispute may be seen as having, or having had, little or no significance.[50]

138 Likewise, in Kuek v Victoria Legal Aid, the Court of Appeal stated:

[U]nless there are indeed exceptional circumstances, a litigant may not raise for determination under Order 56 - or at all events may not raise with any real chance of success - a matter or thing which is proper for determination on appeal where that very litigant has a right of appeal under s 109 [of the Magistrates' Court Act]. In other words, if the proper course is an appeal under s 109, albeit an appeal which is subject to the limitations imposed by that section, the litigant cannot choose at his or her option to turn to Order 56 as an alternative. As has been said, judicial review should not be seen as a means from appealing from the decision of a magistrate.[51]

139 More recently, in Victorian WorkCover Authority v BSA Ltd, the Court of Appeal stated:

It can only be in an exceptional case that this Court should intervene in procedural decisions made in the course of a proceeding before the Magistrates' Court. The policy which underlies s 109 of the Magistrates' Court Act 1989 is clear: the right of appeal on a question of law does not arise until a final decision has been made. That policy should be given effect to. The Court should not be asked to circumvent that policy by exercising its power of judicial review unless there is an overwhelming reason of justice for doing so.[52]

140 In Szirom v Surveyors Board of Victoria, Beach J refused relief in a civil proceeding, observing:

It was agreed by counsel for the plaintiff and counsel for the Board that the appeal to the County Court involved a hearing de novo. Therefore, if the matter proceeds in the County Court by way of appeal, there will be a comprehensive hearing of the appeals with both parties entitled to call whatever relevant evidence they wish to concerning the surveys and penalty in the event that question arises, and with both parties given the right to make submissions to the court. In my opinion, the fact that the plaintiff has a full statutory right of appeal on facts and law is indicative of a legislative intention that the right of appeal is the exclusive remedy available to a surveyor who wishes to challenge the validity or correctness of an order of the Board. If that is not so, one could have a situation where proceedings relating to a surveyor could be the subject of a multiplicity of hearings both before the Board and the courts.

In the present case, if the plaintiff succeeded in this court in establishing that he had been denied natural justice, in the ordinary course of events the matter would be sent back to the Board for a rehearing by a differently constituted board. If the fresh board found against the plaintiff, the plaintiff would then have a right of appeal to the County Court pursuant to s 20 of the Act. Limiting the plaintiff to his right of appeal to the County Court has the potential to reduce the number of hearings from four to two.[53]

141 The statements in these authorities have considerable relevance to the present application for judicial review. The effect of this application for judicial review has been to delay the hearing of the intervention proceeding on the merits for over six months, and to cause the incurrence of considerable additional costs which would have been much better expended in the resolution of the affairs of MNX and SDW, and the making of appropriate parenting arrangements for the infant son.

142 For the reasons that I have stated, there is no need or reason to grant prerogative relief and there are discretionary reasons why prerogative relief should not ordinarily be granted in relation to procedural orders of the Magistrates' Court. The proceeding can be remitted back to the Magistrates' Court for hearing and determination in accordance with the reasons set out in this judgment and in accordance with law. The only practical consequence of this proceeding is that the hearing and determination of the revocation and variation applications will precede the hearing of the application for final orders, should that prove to be necessary.

THE MAGISTRATES' COURT OF VICTORIA Third Defendant

[1] The publication of the names or the identities of parties or witnesses to family violence protection proceedings, or of children the subject of protection orders is prohibited. See s 166(2) of the Family Violence Protection Act 2008 (Vic).

[2] Family Law Act 1975 (Cth).

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

[5] Victoria, Parliamentary Debates, Legislative Assembly, 26 June 2008, 2646 (Rob Hulls, Attorney-General).

[7] Section 109 of the MC Act applies to family violence protection orders - see Act s 170.

[8] [1975] 1 NSWLR 412, 423.

[9] [1971] 1 WLR 1558, 1569.

[10] [2011] FCA 614, [16].

[11] [1991] FCA 650; (1991) 33 FCR 382, 383-384 (citations omitted).

[12] (1986) 162 CLR 24, 39-40.

[13] [2011] VSC 61, [55].

[15] [2017] VSC 733.

[16] The judgment considered the 2008 version of the Rules. However r 4.08 is unchanged in the 2018 version.

[17] [2017] VSC 733, [138]-[139].

[18] [2020] NTLC 016, [21].

[20] [1987] HCA 4; (1987) 162 CLR 447, 458.

[21] [2001] VSC 231, [42].

[23] [2012] HCA 61; (2013) 249 CLR 332, 364 (Hayne, Kiefel and Bell JJ).

[25] Ibid, 375, quoting Dunsmuir v New Brunswick [2008] 1 SCR 190, 220-221.

[26] [2018] HCA 30; [2018] 264 CLR 541.

[27] [2020] HCA 34; [2020] 269 CLR 439.

[29] [2018] VSCA 215; (2018) 57 VR 334, 354-355 (Maxwell P, Beach and Niall JJA) (emphasis in original) (citations omitted) ('Roberts'), referring to Condon v Pompano Pty Ltd (2013) 252 CLR 38, 99 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, 14.

[30] [2015] FCAFC 87, [37], citing Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 350 (Mason J); Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, 184-185 (Kirby J).

[31] Ibid [38], citing Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589 (Rich J); Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, 395-396 (Dixon and Webb JJ).

[33] (2009) 240 CLR 319, 354.

[34] (2013) 252 CLR 38, 99 (citations omitted), discussing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, 14.

[35] [2017] VSC 733, [49].

[36] [2009] VSC 477, [15].

[37] Referring to Shaw v Yarranova Pty Ltd [2006] VSC 45, [66]-[67] (Bell J).

[41] [2019] HCA 3; (2019) 264 CLR 421, 445 (Bell, Gageler and Keane JJ).

[43] (2021) 95 ALJR 441.

[44] [2022] HCA 26.

[45] An intervention order, whether interim or final, is a civil order. See Act ss 57(1)(d), 96(1)(e).

[46] See for example Holihan v Amcor Ltd [2011] VSCA 225, [17]; Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 25-26; R v Smith (1994) 181 CLR 228, 346; DPP v Pace (a pseudonym) [2015] VSCA 18; (2015) 45 VR 276, 283-284; DPP (Vic) v Judge Lewis of County Court of Victoria [1997] 1 VR 391, 401-2; Perkins v the Victorian Bar Inc and Legal Professional Tribunal [2007] VSCA 107, [14].

[49] [2018] VSC 253, [31].

[50] [1999] VSCA 117; [1999] 3 VR 331, 336.

[51] [2001] VSCA 80, [16].

[52] [2017] VSCA 276, [10].

[53] [1995] 9 VAR 91.