Plaintiff v First Defendant

1 The plaintiff, Priscilla Carroll (a pseudonym), and the first defendant, Marvin Browne (also a pseudonym) are parties to a proceeding under the Family Violence Protection Act 2008 (Vic) (FVP Act).[1]

2 On 24 October 2017 Mr Browne filed a notice of appeal to the County Court against two orders of the Magistrates' Court made under the FVP Act. The first order, made on 10 May 2017, was to refuse Mr Browne's application for an intervention order against Ms Carroll (May order). The second order, made on 6 October 2017, included an order that Mr Browne pay Ms Carroll's costs of $12,000 (October order).

3 The issue in this case is whether Mr Browne can appeal against both the May order and the October order, or only the October order. There is a strict 30 day time limit for an appeal under s 114 of the FVP Act.

4 His Honour Judge O'Connell of the County Court ruled that the appeal against both orders was within time. Ms Carroll seeks review of that ruling in this proceeding, in which she contends that Mr Browne's appeal against the May order is out of time.

5 For the reasons that follow I am unable to agree with the learned County Court judge's construction of s 114 of the FVP Act or his Honour's conclusion that Mr Browne's appeal against the May order is within time. It follows that the County Court does not have jurisdiction to hear the appeal against the May order.

6 In 2016 Ms Carroll and Mr Browne were, briefly, in an intimate personal relationship. On 17 August 2016 Ms Carroll sent Mr Browne a text message with a photograph of herself and two other ex-partners of Mr Browne, with the message "LOL".

7 On 18 August 2016 Mr Browne applied to the Magistrates' Court for an intervention order under the FVP Act. At the first hearing on 9 September 2016 a Magistrate declined to make an interim intervention order, and adjourned the application for directions.

8 The application was heard on 10 May 2017, when Magistrate Goldsborough refused to make a final order and gave brief oral reasons for her decision. The certified extract of the orders made by the Magistrates' Court on 10 May 2017 records, under Orders:

FAMILY VIOLENCE APPLICATION

INTV order : REFUSED

Final Order refused

9 Ms Carroll, the respondent to the application in the Magistrates' Court, sought an order that Mr Browne pay her costs of the proceeding. She also sought other ancillary orders for redaction of the file and for publication, which are not relevant here. Those applications were adjourned and the parties were invited to file and serve written submissions, which they did by 24 May 2017.

10 On 6 October 2017 Magistrate Goldsborough made an order that Mr Browne pay Ms Carroll's costs of $12,000, and made other ancillary orders. Magistrate Goldsborough provided written reasons for these orders, in which she referred to her oral reasons for decision given on 10 May 2017. In summary, those reasons were:

(a) there was no evidence of family violence behaviour established;

(b) there was no risk of future family violence behaviour; and

(c) the applicant Mr Browne lacked credibility and his evidence was inconsistent and unreliable.

11 Magistrate Goldsborough determined that the primary expectation that parties bear their own costs of an application under the FVP Act was displaced in this case, because she was satisfied that the application was vexatious and frivolous. She explained in her reasons the basis for this conclusion:

Relevant to the question of costs, Mr [Browne] was wholly unsuccessful in his application for an intervention order. His application refused and findings made as to his credibility, and truthfulness. Even if his evidence was accepted as to a photograph and a phone call, no finding of family violence related behaviour could have ever been made out. No evidence of any contact from journalists, plausible reasons why he may need security - threats in relation to his business dealings - and findings he was mistaken about dates and times he alleged events occurred, meant no order could have ever been made.

Mr [Browne] was an unimpressive witness, his accounts of threats not made out, and elements of his statement to police conceded by him in cross examination to be at best inaccurate. I consider his allegations fanciful at best.

I do consider the applicant has a heightened and fanciful view of his own importance. At no time was there ever any plausible evidence put to the court of threats and concern for his children. In fact even the contact he asserted was engaged in by the respondent to him was barely made out. This was not a case of even exposure to family violence for the children - who I note all live with their mothers - the other original co-respondents.

There were no credible threats, and in fact no credible contact bar one photo of the three women sent to Mr [Browne] made out. In my view there was no family violence behaviour, nor future risk of family violence behaviour to [Marvin Browne].

On that basis the Magistrate was satisfied that Mr Browne's application for an intervention order was frivolously and vexatiously made, and she ordered him to pay costs to Ms Carroll. She fixed the amount of costs to be paid at $12,000.

12 Mr Browne filed a notice of appeal to the County Court on 24 October 2017. The appeal was expressed to be "against refusal to make an intervention order and associated ancillary orders" - that is, against both the May order and the October order. The notice of appeal was filed with the Magistrates' Court, as required by s 116(1) of the FVP Act. The appeal was allocated two separate proceeding numbers in the County Court: AP-17-2806 for the appeal against the May order and AP-17-2807 for the October order.

13 On 21 December 2017 Judge O'Connell of the County Court heard argument as to whether Mr Browne's appeal against the May order was within time. His Honour determined that it was, and published reasons for his ruling dated 14 February 2018. Those reasons identified the threshold question to be determined as:

Did the 30 day time period within which the appeal should be filed, run from the time of refusal to grant the intervention order on 10 May 2017, or did it run from 6 October 2017 when orders as to costs and redactions were made?

14 His Honour held that the answer to that question was that the 30 day time period within which the appeal should be filed began to run from 6 October 2017, when orders as to costs and redactions were made and the proceeding was finally disposed of by the Magistrates' Court. On 14 February 2018 His Honour made orders in appeal proceeding AP-17-2806, including an order that the application is within time and the appeal may proceed.

15 Both appeal proceedings are listed for hearing in the County Court on 23 May 2018. There is no issue about the hearing of proceeding AP-17-2807, the appeal against the October order, which was commenced within time.

16 Ms Carroll sought review of Judge O'Connell's decision in this Court, in an originating motion for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015. The originating motion was supported by an affidavit sworn by Ms Carroll on 6 March 2018.

17 I heard the judicial review application on 11 May 2018. Ms Carroll was represented by David Freeman of Freeman Lawyers, and Iain Jones QC appeared for Mr Browne, instructed by Aitken Partners. The County Court did not take an active role in the proceeding, in accordance with the principles in R v Australian Broadcasting Tribunal; ex parte Hardiman.[2]

Family Violence Protection Act 2008 (Vic)

18 The FVP Act was enacted in 2008, with the purpose to:[3]

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

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

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

19 At relevant times s 2 of the FVP Act provided that the FVP Act aimed to achieve its purpose by:

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

(b) creating offences for contraventions of family violence intervention orders and family violence safety notices.[4]

20 Section 5 provides a comprehensive definition of family violence. Relevantly here, family violence is behaviour by a person towards a family member of that person if that behaviour:

(i) is physically or sexually abusive; or

(ii) is emotionally or psychologically abusive; or

(iii) is economically abusive; or

(iv) is threatening; or

(v) is coercive; or

(vi) in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; ...

21 A family member is defined in s 8, and includes a person who has had an intimate personal relationship with the relevant person.

22 Part 4 of the FVP Act deals with family violence intervention orders. An application for an intervention order may be made under Division 1 of Part 4. Division 2 enables the making of interim orders, and Division 3 concerns proceedings for final orders.

23 Under s 74(1), in Division 4 of Part 4, the relevant court may make a final order if the court is satisfied, on the balance of probabilities, that the respondent has committed family violence against an affected family member and is likely to continue to do so or do so again. Division 5 of Part 4 provides for the conditions that may be included in a family violence intervention order. These include conditions excluding the respondent from the protected person's residence,[5] prohibiting contact with a child,[6] and suspending or cancelling a firearms authority.[7]

24 Division 7 of Part 4 provides for the duration of a final order. Generally, a final order remains in force for the period specified in the order or, if no period is specified, until it is revoked by the court or set aside on appeal.[8] A court that makes a final order may vary, revoke or extend the duration of the order, in accordance with Division 8 of Part 4. Counsel advised me that an application to vary, revoke or extend a final order is dealt with on the same Magistrates' Court file as the file for the application in which the final order was made.[9]

25 Division 9 of Part 4 provides for appeals and rehearings. The appeal in this case was brought under s 114(1), which provides:

A party to a proceeding under this Act may appeal against an order of the court in the proceeding or a refusal of the court to make an order (a relevant decision).

26 An appeal from an order made by the Magistrates' Court must in most cases be made to the County Court.[10] An appeal is made by filing a notice of appeal with the court that made the relevant decision - in this case, the Magistrates' Court.

27 As to timing, s 116(2)(c) provides that the notice of appeal must be filed within 30 days after the day the relevant decision was made. There is no provision for an extension of time to appeal. In other cases the County Court has held that the FVP Act provides for a "strict mandatory appeal period".[11]

28 An appeal does not stay the operation of the relevant decision.[12] However, the court that made the relevant decision may, on application, stay the operation of the relevant decision, or any part of it, pending the determination of the appeal.[13]

29 An appeal is by way of a rehearing.[14] The appeal provisions envisage a de novo rehearing,[15] after which the court hearing the appeal may confirm, set aside or vary the relevant decision, and make any other order that the court below could have made.[16]

30 Section 120 provides that there is no appeal against the decision of the court on appeal under s 119, except an appeal on the basis of jurisdictional error. Mr Browne relied on the explanation for this limited right of appeal given in the second reading speech for the FVP Act:[17]

This is appropriate as the rights of the parties in such cases have been tested in a hearing ... and further appeals could result in a proliferation of proceedings. This may result in the attendance of those subject to family violence at numerous traumatic court hearings. If new facts and circumstances emerge, then the respondent for an order may seek a variation or revocation of the family violence intervention order from the Magistrates' Court.

31 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.

32 In addition to the right to appeal any order made in a proceeding under the FVP Act, the respondent to a final order may apply under s 122 of the FVP Act for a rehearing of the proceeding. The court that made the final order may rehear the matter only if satisfied either that the application for the order was not brought to the respondent's attention, or that there are exceptional circumstances and a rehearing is fair and just in all the circumstances of the case.

33 Contravention of a family violence intervention order is a criminal offence, as provided in Divisions 10 and 11 of Part 4 of the FVP Act.

34 Section 154(1) provides that each party to a proceeding for a family violence intervention order must bear the party's own costs of the proceeding. However, the court may make an order about costs under s 154(3) in two situations:

(a) where the court decides that exceptional circumstances warrant the making of such an order in a particular case; or

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

35 In this case, the Magistrate awarded costs against Mr Browne under s 154(3)(b), on the basis that she was satisfied that his application was vexatiously and frivolously made.

36 In a clear and timely decision,[18] Judge O'Connell accepted the submission of Mr Browne that "an order of the court in the proceeding" in s 114(1) of the FVP Act should be read to mean all orders that are required to finally dispose of the proceeding. His Honour referred to s 37(c) of the Interpretation of Legislation Act 1984 (Vic), which provides that in an Act words in the singular include the plural, unless the contrary intention appears. Discerning no contrary intention, his Honour held that a "relevant decision" for the purposes of s 114 may consist of multiple orders made at different times arising out of the same proceeding.[19]

37 Critical to the analysis was the fact that s 119 of the FVP Act provides for an appeal by way of rehearing rather than review. From the broad ambit of an appeal defined in s 119, his Honour inferred that other provisions affecting appeals should be interpreted beneficially rather than being read down in an unduly narrow way.[20] In addition, his Honour had difficulty seeing how the Court could consider afresh the question of costs and the application of s 154(3) without also considering the substantive decision afresh. His Honour concluded:[21]

The narrow construction of s 114 would confine this appeal to a rehearing on the question of costs without rehearing or reviewing the decision on which any costs order must be based. Such a situation would be impractical and could not have been intended by Parliament.

38 His Honour was reinforced in this construction by the fact that s 117 enables a stay of "the relevant decision or any part of the decision". This was said to support a construction in which multiple orders, both substantive and ancillary, constitute a relevant decision.[22] Further, his Honour considered that the purpose of the FVP Act - prevention and reduction of family violence by providing for an effective and accessible system of family violence intervention orders - would not be achieved if those wishing to appeal were required to lodge multiple appeals in respect of multiple orders made at different times.[23]

39 Counsel for both parties referred me to the Court of Appeal's exposition of the principles of statutory construction in Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd,[24] and to Riordan J's recent summary of those principles in Ian Street Developer Pty Ltd v Arrow International Pty Ltd.[25] I accept Mr Jones' description of that summary as "an accurate, concise and helpful statement of the relevant law".[26]

40 The parts of Riordan J's summary that are most relevant in this case are:[27]

The primary object of statutory construction is to construe the relevant provision so that its legal meaning is consistent with:

(a) the language of the relevant provision, being the text; and

(b) the legislative purpose of the statute.

The legal meaning is 'the meaning that the legislature is taken to have intended the provision to have'. It may or may not be the same as the literal meaning.

Accordingly, in statutory construction, the focus is on the text and the legislative purpose as follows:

(a) The primacy of the text has been emphasised by the High Court. It has been said that the process of statutory interpretation starts and ends with the text.

(b) To ascertain the legislative purpose, the Court first considers the text of the relevant provision in its context. The context means:

(i) the whole of the Act or other instrument;

(ii) the existing state of the law;

(iii) the mischief that the statute was intended to remedy; and

(iv) the history of the legislative scheme and extrinsic materials.

If the literal meaning of the text is consistent with the identified legislative purpose, the literal meaning will be accepted as the legal meaning.

...

However, if the literal meaning conflicts with the identified legislative purpose, a departure from the literal meaning may be justified. ...

Examples of conflicts between the literal meaning and the identified legislative purpose, which have justified departure from the literal meaning, have included the following:

(a) The literal meaning would conflict with other provisions of the statute.

(b) The literal meaning is inconsistent with the purpose of the statute.

(c) The literal meaning is incapable of practical application.

(d) Adoption of the literal meaning would lead to a result that is absurd, unreasonable or anomalous.

42 Ms Carroll's first ground is, in essence, that the learned judge misconstrued s 114 of the FVP Act. As set out in the originating motion, the first ground for relief is that the learned judge erred in law by:

(a) ascribing an interpretation to the provisions of s 114 of the FVP Act contrary to the clear wording of that section;

(b) holding that a substantive decision of a magistrate made under s 74(1) of the FVP Act is not, when further interlocutory[28] applications have been made, the relevant decision for the purposes of s 114(1) of the FVP Act;

(c) holding that, where interlocutory applications are made by a party to proceedings under the FVP Act, after the making of a substantive decision in those proceedings under s 74(1) of the FVP Act, the time for filing a notice of appeal from that substantive decision under s 116(2)(c) of the FVP Act does not begin to run until those other applications are determined.

43 While the parties agreed about the principles of statutory construction, they disagreed about their application to s 114 of the FVP Act. Their disagreement centred on whether there is any conflict between the literal meaning of s 114(1) and the legislative purpose that may be ascertained from the FVP Act as a whole.

44 On behalf of the plaintiff, Mr Freeman submitted that the words of s 114(1) are clear and should be given their literal meaning. Section 114(1) clearly and unambiguously allows a party to a proceeding under the FVP Act to appeal against one or more orders, or refusals to make an order. The May order, he submitted, was a "relevant decision" from the time it was made and did not cease to be a relevant decision when the October order was made. The 30 day time limit for filing a notice of appeal, prescribed by s 116(2)(c), ran from the date the May order was made. Mr Freeman relied on the precept that there should be finality in litigation to support this interpretation of s 114(1).[29]

45 Mr Jones, for the first defendant, submitted that there was no error in the learned judge's interpretation of s 114(1), and generally adopted his Honour's analysis. He placed particular reliance on:

(a) s 37(c) of the Interpretation of Legislation Act, which requires words in the singular to be read to include the plural, in the absence of a contrary intention;[30]

(b) the undesirability of a proliferation of appeals, which was said to be inconsistent both with the purpose of the FVP Act in s 2(a) and with the reasons given in the second reading speech for limiting appeals under the FVP Act;

(c) the lack of any power to extend time to appeal, which was said to support a wider or more benevolent interpretation of s 114(1);

(d) the power to stay component parts of a relevant decision, with references in ss 117, 118A(2)(b) and 118B(1) to staying "the operation of the relevant decision or any part of the relevant decision";[31] and

(e) the practical difficulty in conducting a de novo rehearing in relation to the costs order alone, fairly and consistent with the judicial function, without also considering afresh the evidence on the substantive application.

46 I am unable to agree with the learned judge's interpretation of s 114 of the FVP Act. In my view, the legislature has provided in s 114 for a broad right of appeal against any order made under the FVP Act, while also ensuring certainty and finality of those orders by prescribing a strict time limit for appeals.

47 Section 114(1) provides a right of appeal against "an order of the court in the proceeding or a refusal of the court to make an order (a relevant decision)". While the term "relevant decision" is used in subsequent provisions concerning appeals, the right of appeal conferred by s 114(1) is against an order or a refusal to make an order. I accept the plaintiff's submission that the meaning of s 114(1) is clear and that there is no reason why those words should not be given their literal meaning. I am not persuaded that the literal meaning conflicts with any identifiable legislative purpose; to the contrary I consider that it assists in achieving the purposes of the FVP Act and the aim of achieving those purposes by providing an effective and accessible system of family violence intervention orders.

48 It may be accepted that, in keeping with s 37(c) of the Interpretation of Legislation Act, the word "order" includes "orders" and the word "refusal" includes "refusals". An appeal under s 114(1) may be made against more than one order, or refusal to make an order. In this case, several orders were made by the Magistrate on 6 October 2017 and Mr Browne could appeal against all of those orders as one "relevant decision".[32] However, the fact that s 116(2)(c) of the FVP Act prescribes a strict 30 day time limit for filing a notice of appeal indicates that Parliament did not intend that an "order" in s 114(1) should include all orders in a proceeding, whenever made. I discern in s 116(2)(c) a contrary intention that limits the orders referred to in s 114(1) to those made no more than 30 days before the filing of a notice of appeal.

49 Mr Jones submitted for Mr Browne that giving the words of s 114(1) their literal meaning would result in a proliferation of appeals, potentially flooding the County Court with numerous appeals, contrary to Parliament's intention. These submissions rather overstated the risk and effects of multiple appeals, in my view. As Mr Freeman pointed out, the FVP Act allows a person to make more than one application for a family violence intervention order against the same respondent. An unsuccessful applicant who has experienced new family violence behaviour by a respondent, or who has new reason to believe that family violence will be repeated, can simply make a new application to the Magistrates' Court rather than appeal the refusal to the County Court. The County Court can also manage its case load sensibly by listing related appeals for hearing together, as it has done in this case.[33]

50 The construction put forward for Mr Browne would apply to all appeals against any type of order in a proceeding under the FVP Act. The FVP Act contemplates that the court may make a range of further orders some considerable time after making a family violence intervention order under s 74. If the broad construction of s 114 is correct, an appeal against any further order could also involve a rehearing of the original intervention order, and any other orders made in the proceeding.

51 For example, the FVP Act contemplates that a party to a final order may later apply to vary or revoke the order.[34] A respondent to a final order might, six months later, seek to vary a condition of the order, for example a condition that restricts the respondent's contact with his or her children. A decision to refuse the variation would be appellable under s 114(1). If the broad construction of s 114(1) were accepted, the "relevant decision" under appeal would be not only the refusal to vary the condition of the final order but also the final order itself - long after the expiry of the 30 day appeal period for the final order. Mr Jones agreed that this result would follow from accepting his submission.[35]

52 This would create ongoing uncertainty about the status of final orders and would be at odds with the aim of providing an effective system of family violence intervention orders. A central feature of that system is that there are criminal sanctions for breach of these orders. The broad construction would prolong, perhaps indefinitely, the contestability of intervention orders made by the Magistrates' Court, and is not consistent with the legislative purpose identified in ss 1 and 2 of the FVP Act.

53 The fact that the FVP Act does not make provision to extend time to appeal does not, in my view, support a construction of "order" in s 114 that includes previous orders of the court, whenever made. To the contrary, it indicates a deliberate legislative choice to restrict appeals to those made within 30 days of an order being made, and to promote the certainty and finality of orders made under the FVP Act.

54 Mr Freeman, on behalf of Ms Carroll, relied on what he called the "finality principle" - the precept that there should be finality in litigation. The public interest in finality in litigation underpins many aspects of our legal system: the rules of res judicata, issue estoppel and double jeopardy, advocates' immunity, statutory limitation periods and more.[36] It is, however, a "policy rather than a principle", a concept that is "relative rather than absolute", that "takes it meaning from its context".[37] It therefore does not assist here in ascertaining what policy the legislature chose in providing for appeals under the FVP Act. That policy is expressed in the text of the statute, read in its context and in light of the legislative purpose.

55 The fact that s 117 provides for a stay of a relevant decision or any part of a relevant decision does not, in my view, affect the interpretation of s 114 one way or the other. It is readily apparent that an order made under the FVP Act may have several component parts, such as the various conditions that may be included in a family violence intervention order under Division 5 of Part 4. Section 117 merely contemplates staying part of an order - for example, a condition prohibiting contact with a child included under s 93 - pending the determination of an appeal. It does not support interpreting "order" in s 114 to include any order in the proceeding, whenever made.

56 Finally, as discussed below in relation to Ground 2, I do not consider that there is any particular practical difficulty in hearing the costs application afresh on appeal.

Ground 2 - scope of appeal from the October order

58 The second ground relied upon by the plaintiff is that the learned judge erred in concluding that it is only possible to determine an appeal from a finding made under s 154(3) of the FVP Act by considering the substantive decision afresh. As noted above, Mr Browne relied heavily on the claimed impracticability of hearing an appeal de novo in relation to the costs order alone, without also rehearing the refusal to make the intervention order. The learned judge accepted this submission, which was critical to his Honour's analysis.[38]

59 I do not agree that there is any particular difficulty in considering the application for costs afresh, without going behind the refusal to make an intervention order. An appeal against a costs order is not an opportunity to relitigate the substantive issues in a proceeding.[39] The Magistrate's refusal to make the order, and her reasons for doing so, will be the starting point for a fresh consideration of whether Mr Browne's application was frivolous or vexatious, and if so whether the discretion to order costs should be exercised, and in what amount. The judge hearing the appeal against the costs order can consider how Mr Browne conducted his application, and whether it was made frivolously or vexatiously, without rehearing the substantive application.

Ground 3 - jurisdiction to hear appeal from the May order

61 Ms Carroll's third ground for relief is that the proper interpretation of the relevant provisions of the FVP Act would have led to a finding that Mr Browne had no standing in the proceeding in the County Court to appeal the substantive decision.

62 Although the ground is expressed in terms of standing to appeal, in argument Mr Freeman described it as going to the County Court's jurisdiction to hear the appeal. Both parties accepted that this ground was consequential upon Ground 1 and the proper interpretation of s 114 of the FVP Act.[40] It was common ground that the County Court has no jurisdiction to hear an appeal against a relevant decision made more than 30 days before the notice of appeal is filed, there being no power to extend time.[41] It follows from my conclusions in relation to Ground 1 that the appeal against the May order was out of time and the County Court has no jurisdiction to hear it.

63 I have found that the County Court does not have jurisdiction to hear Mr Browne's appeal against the May order. I am satisfied that it is appropriate to make orders to give effect to that conclusion.

64 In her originating motion for judicial review, Ms Carroll sought the following orders:

(a) An order that the order of the Honourable Judge O'Connell of the County Court of Victoria made on 14 February be set aside.

(b) An order that the first defendant's County Court application AP-17-2806 be struck out with an order for costs in favour of the plaintiff as the respondent in that application.

(c) An order that the first defendant pay the plaintiff's costs of this action.

(d) Such further or other orders as the Court deems appropriate.

65 These proposed orders are more suited to an appeal than to an application for judicial review, in which the Court's jurisdiction is strictly supervisory. I raised this with Mr Freeman during the trial, and in reply he confirmed that the remedy sought by Ms Carroll is an order in the nature of prohibition preventing the County Court from hearing the appeal against the May order.

66 Subject to any further submissions the parties may make as to the appropriate form of order, I propose to make an order in the nature of prohibition, prohibiting the County Court of Victoria from further hearing proceeding AP-17-2806, the first defendant's appeal against the order of the Magistrates' Court of Victoria in case no. G12300317 made on 10 May 2017, other than to hear and determine any application to have the appeal in proceeding AP-17-2806 struck out for want of jurisdiction and any application for costs of the appeal.

67 I will hear the parties in relation to the costs of this proceeding, including any application for a certificate under the Appeal Costs Act 1998 (Vic).

[1] The parties are referred to by pseudonyms in these reasons so that the reasons can be published without transgressing s 166 of the FVP Act.

[2] [1980] HCA 13; (1980) 144 CLR 13, 35-6.

[4] Section 2 has since been amended by the Family Violence Protection Amendment (Information Sharing) Act 2017 (Vic), which came into effect on 26 February 2018.

[9] Transcript of Proceedings, Carroll v Brown (Supreme Court of Victoria, S CI 2018 00819, Justice Richards, 11 May 2018) (Transcript) at 20:16-21:10; 84:7-12. Mr Freeman, however, submitted that each application on the file was a separate "proceeding".

[10] FVP Act, s 115(a). In the case of an order made by the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder, the appeal is to the Trial Division of the Supreme Court.

[11] Summers (a pseudonym) v McKenzie (a pseudonym) [2015] VCC 2015, [29]-[30]; Sky (a pseudonym) v Sky (a pseudonym) [2018] VCC 417, [14]-[15].

[12] Other than the operation of a counselling order made under s 131 in Part 5: FVP Act, s 117(1).

[15] YY v XX [2013] VSC 743, [45].

[17] Victoria, Parliamentary Debates, Legislative Assembly, 26 June 2008, 2648 (Rob Hulls, Attorney-General).

[18] Browne (a pseudonym) v Carroll (a pseudonym) [2018] VCC 158 (Reasons).

[24] [2016] VSCA 328, [47]-[55] (Warren CJ, Whelan JA and Riordan AJA).

[25] [2018] VSC 14, [51]-[60].

[27] Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSC 14, [52]-[57] (footnotes omitted).

[28] The relevant applications are better described as ancillary rather than interlocutory.

[29] Citing Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, 530 (Barwick CJ) and 539 (Gibbs J); Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232; (2012) 46 VR 1, [17]; Murray Gleeson, 'Finality', (Winter 2013) Bar News: Journal of the New South Wales Bar Association 33.

[30] Citing Fitzmaurice v Repatriation Commission (1989) 19 ALD 297.

[31] I note, however, that ss 118A and 118B were not in force at any relevant time. Those provisions were inserted by s 33 of the Family Violence Protection Amendment Act 2017 (Vic) with effect from 29 March 2018.

[32] This is consistent with the approach taken by the Full Court of the Federal Court in Fitzmaurice v Repatriation Commission (1989) 19 ALD 297, a decision relied upon by the first defendant. In that case the Full Court applied s 23(b) of the Acts Interpretation Act 1901 (Cth) to read "decision" in s 175(1)(b) of the Veterans Entitlements Act 1986 (Cth) to mean all decisions of the Veterans Review Board: see 308-9 (Wilcox J) and 313 (Foster J).

[33] As to multiple or fragmented appeals, see generally, and compare, Australian Building Construction Employees and Builders' Labourers' Federation v Employment Advocate [2001] FCA 1443; (2001) 114 FCR 22, 25 [4]-[7].

[36] Murray Gleeson, 'Finality', (Winter 2013) Bar News: Journal of the New South Wales Bar Association 33.

[39] Baltic Shipping Co v Dillan (1991) 22 NSWLR 1, 32 (NSWCA) (Kirby P).

[40] Transcript at 65:18-66:19, 114:27-115:5.

[41] As the County Court has held in Summers (a pseudonym) v McKenzie (a pseudonym) [2015] VCC 2015, [29]-[30] and in Sky (a pseudonym) v Sky (a pseudonym) [2018] VCC 417, [14]-[15].