(a) first, an order that the applicant's application for leave to appeal be summarily dismissed; and

(b) if the application for leave to appeal is not summarily dismissed, an order for security for costs in the amount of $58,500.

1. These reasons deal with those matters.[5]
2. We note that, pursuant to s 62 of the Supreme Court Act 1986, the respondent's application was determined on the papers. We considered that course to be in the interests of justice in circumstances where the applicant is not present in the jurisdiction and where the parties had each filed extensive written submissions and affidavit material directed to these matters.
3. For the reasons that follow, we will:

(a) refuse the application for summary dismissal; and

(b) grant the application for security for costs, in the sum of $35,000.

1. The respondent sought summary dismissal of the application for leave to appeal on the basis that the applicant's proposed appeal lacks utility because he seeks an order that would require the County Court to hear an appeal against the FVIO, but the FVIO ceased to have effect on 16 November 2023. Thus, the respondent contends, there is no utility in now appealing against those orders. The respondent submitted that any appeal to the County Court would be 'entirely moot', even if leave to appeal were granted.[6]
2. In that regard, the respondent relied upon the decision of this Court in Shire of Yarra Ranges v Russell.[7] There, Redlich JA observed that summary dismissal 'is reserved for those cases where it is plain that the further pursuit of the proceedings would involve a misuse of the Court's procedures, or a waste of its resources, there being no live controversy between the parties and no foreseeable utility in the continuation of the process'.[8] The respondent also relied upon this Court's decision in Leibler v Air New Zealand Ltd,[9] where Phillips JA observed that the Court 'could decline to proceed to the hearing of an appeal if satisfied that the subject matter had become wholly academic so that there was no live controversy between the parties'.[10] In that case there was a dispute as to whether the substantive issue between the parties was moot;[11] more significantly, there was a dispute concerning the orders for costs of the trial, which was the ultimate reason the Court held it was appropriate to proceed to hear the appeal.[12]
3. We commence by observing that in Russell it was not in dispute that there would be no utility in the granting of an injunction at the time the appeal was heard. It was in those circumstances that the Court summarily dismissed the appeal.[13] This case is different: the applicant contends that his proposed appeal has utility because, if he is successful, that will undo the tarnishing of his reputation allegedly caused by the making of the FVIO. In other words, there is a real dispute as to whether the proposed appeal has utility.
4. We accept that, where it is clear that a proposed appeal would have no utility, this Court can (and likely will) summarily dismiss an application for leave to appeal.[14] However, in the present case there is a dispute about that issue; furthermore, we consider that it is arguable that there is utility in the proposed appeal. There are two reasons why that is so.
5. First, it is arguable that the making and existence of the FVIO had a negative effect on the applicant's reputation and that, were the FVIO ultimately to be set aside, that would have a positive or vindicatory effect on his reputation. As Mason CJ, Dawson, Toohey and Gaudron JJ observed in Ainsworth v Criminal Justice Commission, 'the law proceeds on the basis that reputation itself is to be protected'.[15] Thus an appeal against the FVIO could be said to have utility even though the FVIO has expired.
6. Secondly, there are cases to the effect that a person is entitled to seek judicial review in relation to an administrative order that has affected that person's rights, even after the order in question has expired. For example, in Loielo v Giles[16] and Cotterill v Romanes[17] the Court rejected an argument that, because the relevant public health orders there challenged had expired, the proceedings should be dismissed because they lacked utility. That was in part because the public health orders had, while in force, affected the plaintiffs' private rights.[18] It is at least arguable that a similar analysis could apply in relation to the effect of an FVIO.
7. In either case, the application for leave to appeal against the order in the present case would have utility because, if the proposed appeal were to succeed, the appeal against the FVIO could proceed.
8. For these reasons, we do not consider that it is appropriate to summarily dismiss the applicant's application on the basis that it lacks utility. That conclusion does not, of course, foreclose argument on the substantive hearing of the application for leave to appeal (and any appeal) as to the utility of any relief sought in this proceeding.
9. Given that the respondent's application for summary dismissal has failed, it is necessary to turn to his application for an order for security for costs.

Security for costs - applicable legal principles

1. This Court has power under r 64.38(4) of the Rules to make an order that security be given for the costs of an application (or any appeal) on such terms as the Court thinks fit. The power to order security for costs involves an exercise of discretion.[19] Ordinarily, the discretion to order security for costs will be exercised in favour of a respondent who applies for such an order if:

(a) there is an unacceptable risk that the applicant will not be able to meet a costs order in favour of the respondent made consequent upon the application being unsuccessful;[20] and

(b) there are no discretionary or other considerations which require that security for costs not be ordered.

1. The onus lies on the respondent to persuade the Court that it should exercise its discretion to order security for costs. If the applicant for leave to appeal contends that there are circumstances peculiar to his or her case that militate against the making of such an order, he or she has an evidentiary onus to identify them and to draw the Court's attention to any evidence that supports them.
2. The factors that inform the exercise of the Court's discretion whether to order security for costs in respect of an application for leave to appeal include the following:[21]

(a) the prospects of success of the proposed appeal;

(b) the magnitude of risk that a costs order would not be satisfied;

(c) whether the giving of security would be oppressive in that it would stifle a reasonably arguable claim;

(d) whether the conduct of the respondent that is the subject of the proposed appeal has contributed to the risk that the applicant would not be able to satisfy a costs order;

(e) whether the proposed appeal is defensive in nature;

(f) whether the respondent has cross-appealed;

(g) whether the respondent has delayed in applying for security for costs;

(h) whether there are aspects of the public interest which ought to be taken into consideration in deciding whether security should be provided; and

(i) whether there are particular discretionary matters that are relevant in the case.

1. In relation to the magnitude of risk that a costs order would not be satisfied, the fact that an applicant for leave to appeal is ordinarily resident outside Victoria, and has no assets in Victoria, is indicative of such a risk. The authorities indicate that the fact that a party bringing proceedings is resident outside the jurisdiction, and has no assets within it, is 'a circumstance of great weight in determining whether an order for security for costs should be made', and generally an order will be made in such circumstances unless there are other circumstances which overcome the weight of that circumstance.[22] However, it has also been observed that 'the mere circumstance that an applicant is resident outside the jurisdiction does not necessarily invite an exercise of discretion in favour of ordering security, the question being how justice will be best served in the particular case'.[23]
2. In relation to the question whether there are aspects of the public interest which ought to be taken into consideration, that includes the question whether the particular issue raised by the application for leave to appeal is of broader public importance, beyond the interests of the individual parties to the application.[24]

1. The respondent contended that an order for security for costs should be made because there is an unacceptable risk that the applicant will not meet a costs order if one is made against him. The respondent pointed out that the applicant resides in China and has no identifiable property of value in Australia against which a costs order could be enforced. That is so, notwithstanding that the applicant has stated in correspondence with the respondent that he has 'the financial resources to accommodate whatever order for costs the Court may impose'.
2. The respondent also contended that:

(a) the applicant's prospects of success on any appeal are poor;

(b) the giving of security will not stifle a reasonably arguable claim because the applicant has the resources to meet a security for costs order;

(c) that no conduct of the respondent has contributed to the risk that the applicant might not be able to satisfy a costs order;

(d) the respondent has not delayed in making his application for an order for security for costs; and

(e) there are no other discretionary factors weighing against the making of an order.

1. As to the quantum of any such order, the respondent relied upon an affidavit from his solicitor estimating the total costs of the appeal to be $90,000, excluding GST. Adopting what he describes as a 'conservative approach', he sought an order for 65 per cent of that total estimate, being $58,500.
2. The applicant opposed any order for security for costs. His submissions and affidavit material were again prolix and often not directed to the relevant matters. Nonetheless, he pointed to the following matters that are relevant to this Court's exercise of its discretion:

(a) The respondent delayed in filing his application for security for costs and did so in circumstances where the respondent had not met the filing requirements in r 64.11 of the Rules.

(b) There had been no proper communication about, or 'negotiation' of, the security for costs issue prior to the filing of the application by the respondent. In particular, no justification for the amount sought was provided, even after it was requested by the applicant.

(c) Implicitly, he also relied upon the strength of his proposed appeal.

1. Returning to the factors that inform the exercise of the Court's discretion whether to order security for costs, set out earlier, the following factors are relevant in the present context:

(a) the prospects of success of the proposed appeal;

(b) the magnitude of risk that a costs order would not be satisfied;

(c) whether the giving of security would be oppressive in that it would stifle a reasonably arguable claim;

(d) whether the respondent has delayed in applying for security for costs; and

(e) whether there are aspects of the public interest which ought to be taken into consideration in deciding whether security should be provided.

1. We will deal with each of these in turn, albeit in a different order.

Magnitude of risk that a costs order would not be satisfied

1. It is appropriate to commence by considering the magnitude of any risk that a costs order this Court might ultimately make against the applicant would not be satisfied. It appears from the material filed by the applicant that he is not impecunious - he appears to have more than $100,000 of assets. However, he is resident in China - thus he is not ordinarily resident in Victoria. Furthermore, the evidence supports the proposition that he has no assets within Victoria (or Australia). This means that there is a significant risk that, should a costs order be made against him, such an order would not be satisfied, because it would be very difficult to enforce such an order in China.
2. As the authorities demonstrate, this factor, while not determinative, weighs heavily in favour of an order for security for costs.

1. This Court has often cautioned against engaging in any detailed consideration of the merits of the proposed appeal, and plainly it would not be appropriate to express any concluded view on the outcome.
2. Nonetheless, in this case it is appropriate to record our preliminary view that it is plausible to argue that the trial judge erred in concluding that the applicant had not filed his appeal within the statutory time period for which s 116 of the Act provided, in circumstances where:

(a) he had lodged with the Magistrates' Court a signed appeal form (the first Form 3) within the relevant time; and

(b) the only complaint from the Registrar about the first Form 3 appeared to be that the applicant's signature appeared underneath the words 'signature of the appellant' and not in the box next to those words.

1. It appears to us to be credible to submit that, if the Registrar is properly to be regarded as having refused to accept the applicant's first Form 3 for filing in those circumstances, that refusal involved error. We also note that there is a distinct question whether, as a matter of fact, the Registrar did refuse to accept the first Form 3 for filing.
2. If a person has lodged a properly completed appeal form with the appropriate court within the prescribed time, but the court registry then either erroneously refuses to accept that document for filing, or delays in taking such steps as may be necessary for the document to be regarded as 'filed' within the statutory period, it is at face value not obvious that the document is to be regarded as not having been filed within time. That is particularly so where there is no ability for the court to extend time, because the consequence would be that the actions of the registry (be it error or delay) would defeat a person's right to appeal, in circumstances where the person had done all they could do to comply with the statutory provision.
3. In the circumstances, without entering into the merits of the proposed appeal, we consider that, in this matter, the applicant has at least the foundation for a case that he did, in fact, 'file' his first Form 3 with the Magistrates' Court within the statutory period prescribed by s 116 of the Act. If that is so, the County Court had jurisdiction to hear his appeal and the judge wrongly concluded otherwise.
4. The respondent contended in this context, as well, that the applicant's application for leave to appeal would have no utility because the FVIO the applicant seeks to appeal has expired. As discussed earlier in these reasons, we consider that it is arguable that there is utility in the proposed appeal.
5. This factor thus weighs in favour of a refusal of an order for security for costs.

1. The question raised on the applicant's proposed appeal concerns the proper construction and application of s 116 of the Act. It is a question with wider implications than simply the rights of the applicant in this case. It could affect other persons who lodge documents within a statutory timeframe (whether under that Act, or under some other Act) where a court registry either delays in processing such documents or, in error, refuses to accept such documents for filing. In our opinion this is a matter of considerable public importance. Furthermore, as we have already indicated, we consider the applicant's case to have some substance. That means that the point of public importance has greater weight.
2. This factor weighs against the making of an order for security for costs.

Whether giving of security would stifle a reasonably arguable claim

1. The applicant opposes the making of an order for security for costs. Alternatively, he seeks to have the Court 'minimise' the amount ordered as security for costs.
2. However, he did not submit that an order for security for costs would stifle his reasonably arguable claim. Indeed, the applicant's materials contain various statements that he can and will satisfy any order for security for costs, or any ultimate order for costs, that the Court might make.
3. Thus this factor weighs in favour of making an order for security for costs.

Whether respondent delayed in applying for security for costs

1. The applicant contends that the respondent delayed in filing his application for security for costs. The application for leave to appeal was filed on 5 December 2023. However, it appears that that application was not served on the respondent until 8 March 2024.[25] The respondent made his application for security for costs on 11 May 2024. That involves a delay of approximately two months.
2. As noted above, the applicant also relied upon the fact that the respondent failed to file any materials pursuant to r 64.11 within 28 days of service of the application for leave to appeal (the 28 days expiring on or about 5 April 2024). Rather, those documents were filed on 11 May 2024, which was somewhat more than one month out of time. We do not consider that delay to be relevant to the question of the making of an order for security for costs.
3. In our opinion, the respondent's delay in seeking security for costs weighs against the making of an order for security for costs. However, given the relatively short nature of the delay, we would give this matter limited weight.

1. As a starting point, the fact that the applicant is not ordinarily resident in Victoria weighs heavily in favour of the making of an order for security for costs. In addition, his ability to comply with such an order suggests that the proceeding would not be stultified if an order were made.
2. On the other side of the ledger, however, are two significant matters:

(a) first, the applicant's proposed appeal has substance; and

(b) secondly, the point to be ventilated on the appeal is an issue of considerable public importance.

1. Although the question is finely balanced, in our opinion these latter two matters are outweighed by the risk that the applicant would not satisfy any order for costs that this Court might make against him, in circumstances where he has stated that he has the financial means to comply with such an order.
2. For these reasons we would grant the respondent's application for an order for security for costs.

1. As noted above, the respondent seeks an order for security for costs in the sum of $58,500. That sum was based on an estimate of costs of the appeal of $90,000. That estimate was justified by the respondent's solicitor, Mr Muir, on the basis, in part, of the number, length and complexity of the materials filed by the applicant. The $90,000 was broken down in Mr Muir's affidavit as follows:
   1. A review of the Respondent's file relating to the past proceedings and instructions from the client: $9,000.00;
   2. A review of the Appeal papers: $4,000.00;
   3. Briefing & Conference with Counsel $5,000.00;
   4. Preparing Case Response $18,000.00;
   5. Communications with the Applicant and review of further documents from the Applicant; $20,000.00
   6. Instructing Counsel at the return of Leave Hearing: $4,000.00;
   7. Counsel's fees: $30,000.
2. Without expressing any view as to the ultimate quantum upon a taxation of any order for costs this Court might make, it seems to us that some of the amounts set out in Mr Muir's affidavit may be excessive, notwithstanding the matters canvassed in the affidavit. Despite the extra work occasioned by the nature of the applicant's written materials, the primary point in contention is ultimately a narrow question of law. We will not make an order in the sum sought by the respondent. Rather, we will order that the applicant provide security for costs in the sum of $35,000.
3. The respondent also sought an order for the costs of these applications. We will order that the costs of the respondent's applications for summary dismissal and for security for costs be reserved.

[1] In light of the restriction on publication imposed by s 166(2) of the Family Violence Protection Act 2008, pseudonyms have been used in place of the names of the applicant and respondent.

[2] The 30-day time limit ended at 11:59 pm on 16 December 2018. Because that day was a Sunday, the final day for filing was 17 December 2018, pursuant to s 44(3) of the Interpretation of Legislation Act 1984.

[3] Carroll (a pseudonym) v Browne (a pseudonym) [2018] VSC 253, [27], [46]-[48], [62] (Richards J).

[4] Family Violence Protection Act 2008, ss 115(a), 116(1).

[5] This matter was initially referred by the Registrar of the Court of Appeal to a single Judge of Appeal under r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules') to be considered and dealt with under that rule. On 30 October 2024, Walker JA ordered, pursuant to r 64.15(5)(c) of the Rules, that the applicant's application for leave to appeal and the respondent's amended application other than for leave to appeal or cross-appeal be referred for determination by the Court of Appeal constituted by two or more Judges of Appeal.

[6] We note that the respondent did not seek summary dismissal on the basis that the ground of appeal challenging the correctness of the judge's decision concerning want of jurisdiction was doomed to fail or otherwise not reasonably arguable. As we explain later in these reasons, we consider that that aspect of the applicant's application for leave to appeal is plausible.

[7] (2009) 25 VR 560; [2009] VSCA 279 ('Russell').

[8] Russell (2009) 25 VR 560, 567 [26] (Warren CJ agreeing at 567 [28]); [2009] VSCA 279.

[9] [1998] 2 VR 525 ('Leibler').

[10] Leibler [1998] 2 VR 525, 531 (Phillips JA, Winneke P agreeing at 526, Kenny JA agreeing at 534).

[11] [1998] 2 VR 525, 528-9, 533 (Phillips JA, Winneke P agreeing at 526, Kenny JA agreeing at 534).

[12] [1998] 2 VR 525, 533 (Phillips JA, Winneke P agreeing at 526, Kenny JA agreeing at 534).

[13] Russell (2009) 25 VR 560, 567 [27] (Redlich JA, Warren CJ agreeing at 567 [28]); [2009] VSCA 279.

[14] See, eg, Asta Developments (Aust) Pty Ltd v Amasya Enterprises Pty Ltd [2016] VSCA 186, [16]-[19] (Whelan and Ferguson JJA). Again, there was in that case no dispute between the parties that the proposed appeal lacked utility.

[15] [1992] HCA 10; (1992) 175 CLR 564, 577; [1992] HCA 10. But cf Leibler [1998] 2 VR 525, 532-3 (Phillips JA, Winneke P agreeing at 526, Kenny JA agreeing at 534).

[16] (2020) 63 VR 1; [2020] VSC 722 ('Loielo').

[17] (2021) 68 VR 433; [2021] VSC 498 ('Cotterill'). Cotterill was the subject of an appeal, but not on this issue.

[18] Cotterill [2021] VSC 498; (2021) 68 VR 433, 467-9 [132]-[143] (Niall JA); [2021] VSC 498; Loielo [2020] VSC 722; (2020) 63 VR 1, 44-5 [142]-[146] (Ginnane J); [2020] VSC 722.

[19] Wu v Bi [2022] VSCA 22, [11] (McLeish and Emerton JJA) ('Wu'). The principles set out in Wu were drawn from Djordjevich v Rohrt [2021] VSCA 279, [7]-[15] (McLeish JA and Macaulay AJA).

[20] Wu [2022] VSCA 22, [10] (McLeish and Emerton JJA).

[21] The factors that are listed are adapted from Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 73 ALR 289, 299-300 (Smart J); KP Cable Investments Pty Ltd v Meltglow Pty Ltd [1995] FCA 76; (1995) 56 FCR 189, 196-8 (Beazley J); Maher v Commonwealth Bank of Australia [2008] VSCA 122, [78]-[81] (Dodds‑Streeton JA, Redlich JA agreeing at [1]); Bakers Investment Group (Australia) Pty Ltd v Caason Investments Pty Ltd [2014] VSC 154, [46]-[50] (Elliott J); Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [No 3] [2016] VSCA 185, [19] (McLeish JA); Wu [2022] VSCA 22, [10]-[18] (McLeish and Emerton JJA). Some of the older authorities refer to the need for a respondent to establish special circumstances warranting an order for security for costs. The current wording of r 64.38(4) of the Rules does not require that special circumstances be established.

[22] PS Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36; (1991) 102 ALR 321, 323 (McHugh J); [1991] HCA 36 quoted with approval in Yara Australia Pty Ltd v Oswal [2013] VSCA 156; (2013) 41 VR 245, 268 [113] (Priest JA, Redlich JA agreeing at 248 [4], Macaulay AJA agreeing at 274 [136]); [2013] VSCA 156 ('Yara Australia').

[23] Energy Drilling Inc v Petroz NL (1989) ATPR 40-954, 50,422 (Gummow J) ('Energy Drilling') referring to Barton v Minister for Foreign Affairs (1984) 2 FCR 463; [1984] FCA 108; CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270, 284-5 (Bowen CJ). Energy Drilling was also quoted with approval in Yara Australia [2013] VSCA 156; (2013) 41 VR 245, 268 [114] (Priest JA, Redlich JA agreeing at 248 [4], Macaulay AJA agreeing at 274 [136]); [2013] VSCA 156.

[24] See, eg, Australian Dream Homes Pty Ltd v Stojanovski [2016] VSCA 38, [44] (Santamaria and McLeish JJA); Facade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd [2015] VSCA 169, [14], [19] (McLeish JA, Tate JA agreeing at [20]). And, in the High Court, see Devenish v Jewel Food Stores Pty Ltd (1990) 94 ALR 664, 666 (Mason CJ); [1990] HCA 35 and Merribee Pastoral v ANZ Banking Group [1998] HCA 41; (1998) 193 CLR 502, 517 [31] (Kirby J); [1998] HCA 41.

[25] The applicant initially purported to serve the application documents by email but was subsequently informed by the Court of Appeal Registry that personal service was required by 8 March 2024.