Summers (a pseudonym) v McKenzie

4 As can readily be seen from the above chronology, the applicant filed his notice of appeal 54 days outside of the time limit provided for in section 116 (2).

5 In this context, it is relevant to note that, unlike the situation that applies in some other statutory provisions relating to appeals, the FVPA, and in particular, Part 4 and section 116, contain no specific provision for a party to seek leave to appeal out of time in the event that the 30 day period in section 116 (2) is not complied with.

6 When this matter was listed before me, it readily became apparent that there was a jurisdictional threshold question to be considered.

7 Mr Fitzgerald, counsel who appears on behalf of the applicant, indicated that the non-compliance with the time limit in section 116 (2) of the FVPA, required the applicant to apply for leave to appeal out of time.

8 Mr Fitzgerald acknowledged that he cannot invoke any of the provisions of the FVPA in order to apply for such leave. Instead, he submitted that the relevant appeal provisions of the Criminal Procedure Act 2009 ("CPA") permit such an application to be made in this case.

9 More particularly, he relies on section 271 of that Act, which is in the following terms:

If a person is authorised by or under any other Act to appeal from an order of the Magistrates' Court to the County Court, subject to that Act, the provisions of this Act with respect to appeals to the County Court apply

10 The relevant appeal provisions there referred to are to be found in Part 6.1 of Chapter 6, namely sections 254 to 271 inclusive.

11 Section 263 of the CPA makes specific provision for the court to grant leave to appeal out of time in respect to any appeal brought under either 254 or 257 of that Act. An appeal under section 254 can be brought only by an offender who was convicted and sentenced in a criminal proceeding. Section 255 (1) states that the offender must file a notice of appeal within 28 days after the sentence of the Magistrates' Court is imposed. Section 257 grants the DPP a qualified right of appeal against any sentence imposed in a criminal proceeding held in the Magistrates' Court. Section 258 requires the DPP to file any such notice of appeal within 28 days after the day on which the sentence of the Magistrates' Court is imposed.

12 Section 263 (1) of the CPA has the effect of deeming a notice of appeal filed outside the 28 day period in section 255 or 257 as being an application for leave to appeal. Then, section 263 (2) allows for the Court to grant leave to appeal out of time if, but only if, the appellant establishes that the failure to file a notice of appeal within time was due to exceptional circumstances and the respondent's case would not be materially prejudiced because of the delay.

13 So, put briefly, Mr Fitzgerald submits that when read together, sections 271 and 263 permit a person against whom an order has been made under the FVPA in the Magistrates' Court to apply for leave to appeal out of time in the event, as here, they fail to comply with the time limit for filing notice of appeal contained in section 116 (2) of the FVPA. In other words, he submits that providing there is nothing in the FVPA to the contrary, the appeal provisions in the CPA are 'picked up' and apply to this case.

14 On the other hand, Mr Cenacchi, counsel appearing on behalf of the respondent, submitted that this court has no jurisdiction or power to grant the application for leave to appeal out of time.

15 In essence, Mr Cenacchi argued that the only provisions which permit and apply to an appeal to the County Court against a Magistrate's making of a final family violence intervention order under the FVPA are those contained in the FVPA itself. He submitted that those provisions are in mandatory terms and only permit such an appeal if a notice of appeal is filed within 30 days. He went further and submitted that, to the extent that there is no express provision in that Act permitting an application to be made to the County Court for leave to appeal out of time, it is a deliberate decision by Parliament which is to be understood by reference to the subject matter with which family violence protection orders are concerned.

16 In respect to the appeal provisions in the CPA upon which Mr Fitzgerald seeks to rely, Mr Cenacchi submitted that they do not apply to an order such as this as it is a civil order made during a civil proceeding. He submitted that a civil order such as this one is not picked up by the CPA. In that respect he relies on the following matters, inter alia. The name of the Act is the CPA not the Civil Procedure Act. The first stated purpose of the Act, as is clear from section 1 (a), relates to criminal procedure. The important sections of the appeal provisions contained within Part 6.1 of that Act refer to the right to appeal against the conviction and/or sentence in a criminal proceeding, and to the parties who have such a right of appeal as the 'offender' and the 'DPP', respectively. In that context, I note that the words 'conviction' and 'sentence' are defined in section 3 of the CPA.

17 It is appropriate for me to acknowledge at the outset that appeals are a creature of statute. There is no common law or implied right of appeal. As such, the statute provides and limits the Court's appeal powers.[5]

18 In this case, section 116 of the FVPA provides the mechanism for an appeal to the County Court against the decision of a Magistrate to make a final family violence intervention order under the FVPA.

19 Equally clear, is the fact that the relevant time period fixed is in categorical terms, "within 30 days" and that there is no express provision for an application to be made for leave to appeal outside that timeframe.

20 Thus, and Mr Fitzgerald concedes as much, unless the applicant can avail himself of some other statutory provision, any application for leave to appeal out of time is doomed to fail as the Court would have no jurisdiction or power to grant such an application.

21 In this context, it is important to bear firmly in mind that the subject proceeding in the Magistrates' Court was a civil proceeding and the subject order was a civil order.[6] Each of the parties in this case were in agreement in respect to those matters.

22 It seems to me that it would be an illogical and somewhat torturous path for the legislature to have taken if it meant for appeals from Magistrates regarding such orders to be governed by the provisions of the CPA to the extent that they did not conflict with those appeal provisions already contained in the FVPA itself.

23 One is driven to ask rhetorically, why not include such provisions in the FVPA itself as a complete package? Or, why not include them in the Civil Procedure Act 2010, once it came into operation. In any event, I am of the view that a clear reading of the sections in Part 6.1 of the CPA contain appeal provisions which apply to orders as to 'conviction' and 'sentence' made in criminal proceedings not civil proceedings. The order with which we are here concerned cannot possibly come within the definition of either, and of course, Mr Summer is not an 'offender'.

24 Such an interpretation gains significant weight from section 121 of the FVPA, which is headed "Application of certain Acts to Appeals". It states as follows:

The provisions of this Act, the Magistrates' Court Act 1989 or the Children, Youth and Families Act 2005 (as the case requires) so far as applicable and with any modifications and adaptions as are necessary extend and apply to appeals under this Division

25 Of course, that provision came into being in 2008, before the CPA of 2009 was enacted. However, if the legislature had intended for the CPA appeal provisions to apply to orders made under the FVPA, it could have later amended section 121 of the FVPA to achieve just that, and it didn't. I cannot accept Mr Fitzgerald's submission that it may just have been an oversight by Parliament not to have done so. An oversight of such magnitude is very unlikely in my view, and made even more so by the fact that in 2009, following the enactment of the CPA, Parliament made specific provision for an appeal to the County Court in relation to certain ancillary orders under the Road Safety Act 1986, and stated that such appeals were to be subject to the appeal provisions contained in Part 6.1 of the CPA.[7]

26 The co-existence of the appeal provisions of both the FVPA and the CPA cannot occur, as Mr Fitzgerald would have it, in any logical or sensible fashion. They are vastly different types of proceedings, one civil and one criminal. There are different time limits, 30 days and 28 days. One has no right to apply for leave to appeal out of time, which I consider to have been a deliberate decision by Parliament, the other does have such a right.

27 I simply cannot accept Mr Fitzgerald's submission that if section 271 is to be read as not applying to civil proceedings such as this one, then it is rendered otiose and with no work to do. The provisions of the FVPA are in clear and emphatic terms and limit the right to appeal from the Magistrates' Court to the County Court to cases in which the affected party files a notice of appeal within 30 days and not otherwise.

28 In that context, I consider the decision of Kentwell v The Queen,[8] to which Mr Fitzgerald referred me on the issue of not applying appeal limits too strictly, can be readily distinguished as it was a criminal case that involved legislation that made specific provision for an application for leave to appeal out of time.

29 In conclusion, I am firmly of the view that the provisions of the FVPA itself are what provide the legal basis for any right to appeal against an order such as this, and the limits to that right. The appeal provisions in Part 6.1 of the CPA have no application to such an order which is, after all, an order made during a civil proceeding. As such, the applicant has no legal right or capacity to make application to this court for leave to appeal out of time. I therefore rule that such application be struck out as this court has no power to grant the leave sought. Accordingly, no valid appeal is on foot. To the extent that any appeal is presently listed as the result of an invalidly filed notice of appeal, it too should be struck out, if it needs to be.

30 Finally, in the event that I am wrong in my interpretation of the relevant provisions of the two Acts, and that the provisions of the CPA do apply to orders of the type with which we are here concerned, I find that the CPA provisions are 'subject to' the clear provisions of the FVPA which apply a strict and mandatory appeal period with no right to apply for leave to appeal out of that 30 day time limit.

[1] To ensure that there is no possibility of identification, this ruling has been anonymised by the adoption of a

[2] To ensure that there is no possibility of identification, this ruling has been anonymised by the adoption of a

[5] See for example Sweeney v Fitzhardinge (1906) 4 CLR 715 at 725 (Griffith CJ) and Byrnes v The

Queen [1999] HCA 38; (1999) 199 CLR 1 at 35 [84] (Kirby J).

[6] See for example, the following sections of the FVPA: 57 (1) (d), 96 (1) (e), 170, and 209 (4).

[7] See Road Safety Act 1986, section 29 (orders as to cancellation, disqualification, suspension, and

variation of Drivers Licences) and section 50 AAC (orders as to interlock conditions of licences).

[8] [2014] HCA 37; (2014) 313 ALR 451, at [32].