Abdallah v Marash [2024] VCC 1541 (8 October 2024)

Last Updated: 9 October 2024

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

Revised Not Restricted Suitable for Publication

Case No. AP-23-1736
AP-23-1737

MERINA ABDALLAH	Appellant
v
BEVERLY MARASH	Respondent

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	25 September 2024
DATE OF JUDGMENT:	8 October 2024
CASE MAY BE CITED AS:	Abdallah v Marash
MEDIUM NEUTRAL CITATION:	[2024] VCC 1541

REASONS FOR JUDGMENT
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Subject: APPEAL

Catchwords: Appeal out of time – Personal Safety Intervention Order – Review of Judicial Registrar decision – Definition of ‘relevant decision’ – Whether appeal brought in correct jurisdiction

Legislation Cited: Personal Safety Intervention Orders Act 2010; Family Violence Protection Act 2008; Magistrates’ Court Act 1989

Cases Cited: Brown (pseudonym) v Carroll (pseudonym) [2018] VSC 253; Austin v Dobbs [2019] VSC 355; Austin v Dobbs [2019] VSCA 296

Judgment: Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Randazzo SC	Doogue & George
For the Respondent	Ms E Clark	Fayman Lawyers

HIS HONOUR:

1. This is a matter with a simple dispute at its heart that has become overlaid with a tortured procedural history. Unsurprisingly, the issue before this Court arises from that tortured procedural history. A comprehensive recitation of how the issue arises for determination tends to obscure the central matter for determination.
2. That can be simply stated: does this Court have jurisdiction to hear the appeal?
3. The answer to that question is no. To explain that answer, only a few dates in the procedural history need be set out. These are as follows:

(a) 18 August 2023 – In the Magistrates’ Court hearing applications for personal safety intervention orders pursuant to the Personal Safety Intervention Orders Act 2010 (“PSIO Act”), Judicial Registrar Dixon gave rulings broadly:

(i) refusing Abdallah’s application for a Personal Safety Intervention Order (“PSIO”);

(ii) granting Marash’s application for a PSIO;

(iii) refusing Abdallah’s application to revoke an interim PSIO;

(iv) awarding costs in favour of Marash and against Abdallah in a fixed amount.

(b) 22 August 2023 – An application for judicial review of Judicial Registrar Dixon’s ruling was filed.

(c) 11 September 2023 – The application for review of Judicial Registrar Dixon’s ruling was heard by Magistrate Falla.

(d) 16 November 2023 – Magistrate Falla ruled:

(i) Abdallah’s application for review was refused;

(ii) costs were ordered in favour of Marash and fixed.

(e) 12 December 2023 – Abdallah filed a Notice of Appeal to this Court appealing:

(i) the orders made by Judicial Registrar Dixon on 18 August 2023;

(ii) the orders made by Magistrate Falla on 16 November 2023.

Judicial Registrar Dixon’s decision of 18 August 2023

4. It is accepted by the parties that the decision of Judicial Registrar Dixon on 18 August 2023 was in relation to an application for a PSIO in accordance with the PSIO Act. That Act provides that a party has 30 days within which to appeal such orders.^[1] That time expired on 17 September 2023. The Notice of Appeal to this Court was only filed on 12 December 2023. That is outside the time permitted by the PSIO Act. The appeal is therefore out of time. There is no provision to extend time.^[2]
5. There was some suggestion in Abdallah’s first submission on the appeal that time did not start running in respect of both decisions until Magistrate Falla’s decision on 16 November 2023. In that case, it was submitted, the Notice of Appeal was in time. I would reject that argument as I am bound by the decision in Brown (pseudonym) v Carroll (pseudonym).^[3] That holds that the decision of Judicial Registrar Dixon on 18 August 2023 stood alone and must have been appealed within 30 days. It was not. Though that decision was made in respect of the Family Violence Protection Act 2008, I consider it to be analogous legislation to that which is currently under examination, and I consider it applies equally in this case.
6. There was an associated submission advanced in Abdallah’s further submissions of 13 September 2024.^[4] As far as I can understand, that submission seems to assert that Judicial Registrar Dixon’s costs order was stayed and only concluded when Magistrate Falla made her final orders on 16 November 2023. In that way the Notice of Appeal was within time. I cannot accept that submission given there is no order staying the order of Judicial Registrar Dixon. To the extent that parties purportedly acted on that basis (which is not accepted), this is not sufficient to stay an order of the Court from operation. It had effect from the day it was made and time commenced to run from then. Time to appeal expired on 17 September 2023.

Magistrate Falla’s decision of 16 November 2023

7. Turning then to Magistrate Falla’s decision of 16 November 2023. The appeal to this Court was purportedly brought in accordance with s91-93 of the PSIO Act. The respondent submits that Magistrate Falla exercised power in accordance with the Magistrates’ Court Act and not the PSIO Act. As such, the respondent submitted the appeal to this Court does not invoke this Court’s jurisdiction pursuant to s93 of the PSIO Act. That submission must be accepted.

(a) First, it was not contested that Judicial Registrar Dixon’s decision could have been appealed to this Court pursuant to s91 of the PSIO Act. That course would have provided this Court with jurisdiction. Additionally, it was open to Ms Abdallah to seek a rehearing in accordance with s99 of the PSIO Act. Rather, Ms Randazzo SC, for Ms Abdallah, accepted that a different path was taken. That path wended through s16K of the Magistrates’ Court Act 1989. That section deals with appeals or reviews of determinations of the Court constituted by a judicial registrar. It is via this path that the matter came before Magistrate Falla. In that review proceeding, Magistrate Falla exercised powers under the Magistrates’ Court Act. She did not exercise power under the PSIO Act. Even though the order lists the proceeding as being in respect of a PSIO, the powers that were exercised by the magistrate were under the Magistrates’ Court Act because the matter came to her via that path. The tail cannot wag the dog.

(b) Second, to suggest that Magistrate Falla exercised powers under the PSIO Act requires a contortion of the language of s91 of the PSIO Act. That section states:

“Section 91(1)

Who may appeal

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).”

8. The words must be read plainly and they seem to me to be clear. The words “a party to a proceeding under this Act” mean those parties involved in the proceeding before Judicial Registrar Dixon. That application was brought in accordance with Part 3 of the PSIO Act and was heard and determined in accordance with Part 6. Appeals or rehearings from that determination lay in accordance with s91 and s99 of the PSIO Act. Ms Abdallah had, however chosen another path, via s16K of the Magistrates’ Court Act. Therefore, that jurisdiction to hear the review was conferred by s16K.
9. This interpretation is supported by the underlying principles which inform the scheme set out in the PSIO Act. These were exposed in Brown v Carroll where Her Honour Richards J stated that a key reason, in the analogous Family Violence Protection Act legislation, lay in “... ensuring certainty and finality of those orders by prescribing a strict timing for appeals”. Ms Abdallah’s submission results in an interpretation which offends these principles. As an example, it would mean, despite Judicial Registrar Dixon’s ruling, a party who had succeeded would have to await the application for review pursuant to s16K, then if successful, the review de novo, and then potentially a further appeal by way of rehearing via s91 of the PSIO Act to this Court. That is an uncertain, long and complex path. It is the antithesis of the interpretation which I consider to be correct and is urged upon the Court by the respondent.
10. Further argument was put by the appellant that the orders of Judicial Registrar Dixon on 18 August 2023 and that of Magistrate Falla on 16 November 2023 together comprise the “relevant decision” which was appealed by reason of the notice on 12 December 2023. This would mean that the Notice of Appeal was within the 30 day time limit prescribed by the PSIO Act. I reject that submission as I am bound by the decision of her Honour Richards J in Brown v Carroll. Her Honour there made it plain that the “relevant decision” related to the order which substantially disposed of the application rather than any order which was made subsequently. For that reason, I do not accept the appellant’s submission on this point.
11. Rather, I find the rights of appeal from Magistrate Falla’s orders lie to the Supreme Court either via s109 of the Magistrates’ Court Act or via Order 56 of the Supreme Court (General Civil Procedure) Rules 2015.
12. For these reasons, I conclude:

(a) any appeal from Judicial Registrar Dixon’s orders is out of time prescribed by the PSIO Act. Consequently, this Court has no jurisdiction to hear the appeal;

(b) the appeal from the orders of Magistrate Falla is improperly made as the jurisdiction of this Court pursuant to the PSIO Act is not enlivened.

13. I will dismiss the appeal. I will provide the parties with five days to provide consent orders as to the disposition of the appeal or if no consent can be achieved, submissions of no more than three pages in respect of the ancillary orders which should flow from these findings attaching the proposed form of orders each party contends for.

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^[1] Section 91-93 of the PSIO Act

^[2] Austin v Dobbs [2019] VSC 355 at paragraphs 42-45; Austin v Dobbs [2019] VSCA 296 at paragraphs 97-98

^[3] Brown (pseudonym) v Carroll (pseudonym) [2018] VSC 253 at [46-48]

^[4] Appellants Submissions 13 September 2024 beginning at [11] – [18]