Myers v Satheeskumar & Ors (Judicial Review) [2024] VSC 12 (31 January 2024)

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JOHN MYERS	Plaintiff

v

KATHUSIYAN SATHEESKUMAR	First Defendant

THUYAPARAN GOPALARATHINAM	Second Defendant

DANDENONG MAGISTRATES’ COURT	Third Defendant

JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2023, 4 January 2024 and 29 January 2024
DATE OF JUDGMENT:	31 January 2024
CASE MAY BE CITED AS:	Myers v Satheeskumar & Ors (Judicial Review)
MEDIUM NEUTRAL CITATION:	[2024] VSC 12	First Revision: 13 November 2024

ADMINISTRATIVE LAW – Judicial review – Application for interim personal safety intervention orders – Personal Safety Intervention Orders Act 2010 ss 13, 35, 38, 86 – Declaration of truth – Affidavit – Whether Magistrates’ Court can grant interim personal safety intervention orders without oral evidence or affidavit – Whether orders made in breach of s 38(1) are invalid – Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355‑.

APPEARANCES:

The Plaintiff was self-represented

The First Defendant was self-represented

The Second Defendant was self-represented

The Third Defendant was not represented

1 The Magistrates’ Court of Victoria granted interim personal safety intervention orders without supporting oral evidence or affidavits. Were those orders invalid?

2 The Personal Safety Intervention Orders Act 2010 (PSIO Act) is intended to protect the safety of victims of assault and other forms of harm, including harm to property, by providing an effective and accessible system of personal safety intervention orders.^[1]
3 The PSIO Act empowers the Magistrates’ Court and the Children’s Court to grant final personal safety intervention orders (PSIOs) after following detailed procedural steps on the application of quite complex criteria.^[2] Clearly, it may take some time for an application for a PSIO to be finally determined. In recognition of this, the PSIO Act also empowers those courts to grant interim PSIOs.
4 An interim PSIO may be granted if a person has applied to the court for a PSIO and the court is satisfied, relevantly, that an interim order is necessary pending a final decision about the application, to ensure the safety of the affected person, and that it is appropriate to make the order.^[3] An interim PSIO may be made without notice to the respondent and in their absence.^[4] Contravention of an interim PSIO can give rise to an offence and can lead to arrest.^[5]
5 Interim PSIOs can have an important role in safeguarding the interests of people who may be exposed to violence. However, because of the circumstances in which they can be granted, care is needed lest they have an unduly prejudicial impact on respondents to whom they apply.
6 Except for waivers granted for police applications or where the respondent consents, the Magistrates’ Court ‘must not’ grant an interim PSIO unless the application is ‘supported by oral evidence or an affidavit’.^[6] This prohibition is imposed by s 38(1) of the PSIO Act. However, the form made available by the Magistrates’ Court for applications for a PSIO does not require or include an affidavit, and is merely supported by a ‘declaration of truth’.^[7] The making of applications supported by ‘declaration of truth’ was a measure introduced during the COVID-19 pandemic to facilitate applications by electronic means.^[8] The PSIO Act provides that applications may also be made by affidavit.^[9]

7 The first and second defendants lodged written applications for PSIOs against the plaintiff, Mr Myers. The Magistrates’ Court made interim PSIOs against Mr Myers in his absence, following a brief hearing without notice to Mr Myers, at which neither applicant appeared and no affidavit was tendered. In making the interim PSIOs, the Magistrates’ Court relied only on the written applications, supported by declarations of the truth of their contents. Soon afterwards, Mr Myers applied to revoke the interim PSIOs, and it seems that the court refused to consider revoking the interim PSIOs unless Mr Myers could point to a change in circumstances.

8 I have concluded that the Magistrates’ Court breached the prohibition in s 38(1) of the PSIO Act on granting interim PSIOs without supporting oral evidence or an affidavit. A difficult question of statutory construction arises as to whether this results in invalidity of those interim PSIOs. The Magistrates’ Court was joined as a party, but took no active role in the proceeding and did not make any submissions on this issue. Nevertheless, I am of course required to consider both sides of the issue and to reach the correct conclusion on the statutory construction issue.^[10]
9 Taking all relevant factors into account, I have concluded that the interim PSIOs are invalid, in spite of the public inconvenience and safety issues entailed by this conclusion. I am conscious that this conclusion could cast doubt on the validity of other interim PSIOs granted in similar circumstances. It may be a matter of urgent public concern if other interim PSIOs are subject to doubt by reason of any systematic defect in the manner they have been granted. It is unclear to me whether the approach of the Magistrates’ Court to this case is widespread. However that may be, any perceived solution must be left to the legislature, not the Court.
10 I will quash the interim PSIOs against Mr Myers.

11 This proceeding, like Mr Myers’ related appeal from VCAT,^[11] arose from subletting arrangements in a share house in Berwick. There was a falling-out amongst the three residents of the share house; between Mr Myers on the one hand, and the first defendant (Mr Satheeskumar) and the second defendant (Mr Gopalarathinam) on the other.^[12]
12 Related proceedings in VCAT are scheduled to be heard tomorrow, 1 February 2024. In the interests of justice, it is desirable for this proceeding to be determined before that hearing and for these reasons to be available to Mr Myers, should he wish to raise them in the VCAT proceeding.

13 In this proceeding, Mr Myers on the one hand, and Mr Satheeskumar and Mr Gopalarathinam on the other, advanced various factual assertions about what had occurred in the course of the background events. As I explained at the hearing, the Court’s role in a judicial review proceeding of this kind prevents me from reaching any conclusions on such matters. The task of the Court in this case is to adjudicate on the legality of the decisions of the Magistrates’ Court under review and not their merits.
14 The Court received into evidence four affidavits of Mr Myers^[13] and two additional exhibits.^[14] The following account is drawn from this evidence.

15 On 10 August 2023, the Magistrates’ Court made an interim PSIO against Mr Satheeskumar on the application of Mr Myers (the first interim PSIO).^[15] The validity of the first interim PSIO was not challenged in this proceeding, but it is relevant to mention it, because certain subsequent decisions relating to it are challenged. Mr Myers provided an unofficial transcript of part of the hearing on 10 August 2023. The learned magistrate who made the first interim PSIO disallowed part of Mr Myers’ application. Mr Myers had sought to exclude Mr Satheeskumar from the address of the share house, but this was not included in the first interim PSIO.
16 On 21 August 2023, the Magistrates’ Court made two interim PSIOs against Mr Myers, one on the application of Mr Satheeskumar (the second interim PSIO)^[16] and the other on the application of Mr Gopalarathinam (the third interim PSIO).^[17] The learned magistrate who made these two interim PSIOs included restrictions excluding Mr Myers from the address of the share house. The validity of the second and third interim PSIOs was challenged in this proceeding.
17 On 4 September 2023, there was a hearing in the Magistrates’ Court relating to all three interim PSIOs. Mr Myers applied for variation of the first interim PSIO to prevent Mr Satheeskumar from coming within 100 metres of the address of the share house or 5 meters of Mr Myers in any other place. Mr Myers also applied for, or sought leave to apply for, revocation or variation of the second and third interim PSIOs. Because an effect of the second and third interim PSIOs was to exclude Mr Myers from the share house, Mr Myers contended that he had been made homeless. Mr Myers sought to have the Magistrates’ Court consider evidence he relied upon as to the merits of the applications for PSIOs. Mr Myers in effect contended that this evidence showed that he was the victim, not the perpetrator, of any relevant violence and risk to property.
18 All three of Mr Myers’ applications were refused and the matters adjourned to a mention hearing on 30 January 2024 and a two-day contested hearing on 15 and 16 May 2024. On 18 September 2023, Mr Myers again applied, unsuccessfully, to vary the first interim PSIO and revoke or vary the second and third interim PSIOs.

19 Mr Myers commenced this proceeding for judicial review on 4 October 2023 by originating motion.^[18] Mr Myers’ originating motion contained a number of claims and grounds, which may conveniently be summarised as follows.
20 As to the first interim PSIO, the originating motion claimed that this Court should vary it to impose a restriction preventing Mr Satheeskumar from coming within 200m of the address of the share house or 5m of Mr Myers, and requiring the listing of Mr Myers’ belongings.^[19]
21 As to the second and third interim PSIOs, the originating motion claimed that this Court should strike out (scil., quash) them because either the Registrar or the relevant Magistrates of the Magistrates’ Court should have found the applications for them to be frivolous and vexatious.^[20] During the proceeding, I allowed an amendment to the originating motion adding another ground for this claim, relating to the absence of any supporting oral evidence or affidavit in breach of s 38(1) of the PSIO Act.
22 The originating motion claimed that the Magistrates’ Court in any event erred in its understanding of the PSIO Act in failing to consider whether to revoke the second and third interim PSIOs,^[21] and that the delay in dealing with the merits of the applications for the three interim PSIOs until the scheduled contested hearing in May 2024 was excessive.^[22]
23 As a somewhat discrete point, the originating motion also questioned whether the second and third interim PSIOs should have been varied to allow Mr Myers to send legal documents and notices for current and future legal proceedings to Mr Satheeskumar and Mr Gopalarathinam.^[23]

24 Mr Myers initially supported his claims and grounds in the originating motion by submissions dated 22 October 2023.
25 Neither the grounds set out in the originating motion nor the submissions of 22 October 2023 referred to the prohibition on the Magistrates’ Court granting interim PSIOs without supporting oral evidence or an affidavit. However, Mr Myers later advanced a ground based on this prohibition in his Additional Outline of Submissions filed on 3 November 2023, to which I refer in more detail below.

26 The Magistrates’ Court, as the third defendant in the proceeding, was served with the originating motion and other documents. On 12 October 2023, the Magistrates’ Court indicated that it was adopting a Hardiman position, and would not be taking an active role in the matter.
27 The terms of the interim PSIOs made against Mr Myers prevented him from communicating with Mr Satheeskumar and Mr Gopalarathinam about this proceeding (or any other litigation) unless Mr Myers was able to retain a lawyer and the communication was through that lawyer. I was satisfied that Mr Myers was unable to retain a lawyer.
28 On 13 October 2023, I made orders for substituted service for the purpose of bringing the proceeding to the attention of the defendants. By way of service effected by the Prothonotary of the Supreme Court, the originating documents in this proceeding were posted to each of Mr Satheeskumar and Mr Gopalarathinam separately at their address in Berwick, as well as being emailed to Mr Satheeskumar using an email address provided to the Court. The Court was not supplied with any email address for Mr Gopalarathinam.
29 There were various subsequent communications which the Court intended and attempted to make to Mr Satheeskumar using the email address provided to the Court.
30 Following an attempted hearing on 6 November 2023 at which no party appeared, the Court sent correspondence to each of the parties on 6 November 2023 relisting the hearing on 10 November 2023.
31 On 10 November 2023, Mr Myers appeared via audio-visual link. Mr Satheeskumar and Mr Gopalarathinam did not appear at the hearing. Copies of certified extracts of the second and third interim PSIOs were accepted into evidence.^[24] The hearing was adjourned part-heard, to allow Mr Myers the opportunity to give additional affidavit evidence.
32 On 10 November 2023, I ordered that the second and third interim PSIOs be stayed insofar as they purported to have the effect of preventing Mr Myers from communicating in writing with Mr Satheeskumar and Mr Gopalarathinam for the purpose of legal proceedings in Victoria. This Court has inherent and supervisory jurisdictions to restrain abuses of the processes of inferior courts and tribunals in Victoria and to protect the exercise of the jurisdiction of the Court and inferior courts and tribunals in Victoria.^[25] I made this order because I was satisfied that this aspect of the second and third interim PSIOs was inhibiting the plaintiff’s ability to invoke the jurisdiction of this Court and inferior courts and tribunals of Victoria and constituted an abuse of process that this Court could and should restrain. I imposed the stay until further order or 30 June 2024, whichever is sooner.
33 Between 10 November 2023 and 21 December 2023, at my instigation there was correspondence between the Court and the parties relating to Mr Myers’ contention that the interim PSIOs against him were granted by the Magistrates’ Court in breach of s 38(1) of the PSIO Act. The Magistrates’ Court indicated that it adhered to its position that it would take no active role, but it also drew attention to r 42.13 of the Rules. Under this provision, the plaintiff was entitled to inform the Prothonotary of the Supreme Court in writing that the Prothonotary should request production of any documents on the Magistrates’ Court file.
34 On 8 December 2023, the Court sent a letter to the parties to this proceeding reiterating that the plaintiff could request the Prothonotary to request production of relevant documents on the Magistrates’ Court file. On the same day, Mr Myers wrote to the Prothonotary of the Supreme Court seeking production of all documents filed by Mr Satheeskumar and Mr Gopalarathinam in the relevant Magistrates’ Court proceedings (Magistrates’ Court documents). The Magistrates’ Court documents were sent to the Prothonotary of the Supreme Court by the Magistrates’ Court on 21 December 2023.
35 By correspondence from the Court on 20 December 2023, the parties were notified of the resumption of the hearing on 4 January 2024.
36 On 3 January 2023, it came to the Court’s attention that the email address used for Mr Satheeskumar in the Court’s correspondence was incorrect, and that as such a number of communications had likely not been received by him. The Court was provided with a corrected email address for Mr Satheeskumar, who was promptly provided with the details of the listing for the resumption of the hearing scheduled for the following day.
37 The part-heard hearing resumed on 4 January 2024 and was attended by Mr Myers, Mr Satheeskumar and Mr Gopalarathinam via audio-visual link.
38 At the hearing, Mr Gopalarathinam indicated that he had been absent from the address of the share house and had consequently not received a number of communications sent by the Court to that address. Mr Gopalarathinam indicated he was returning to and would again reside at the share house, and he provided an email address by which he could be contacted. Mr Satheeskumar also confirmed with the Court his correct email address and residential address. Both Mr Satheeskumar and Mr Gopalarathinam also expressed their desire to have the services of an interpreter in order to better understand the court proceedings.
39 In all these circumstances, I reached the view that it would be necessary to adjourn the hearing to ensure that parties could be provided with a collection of all court documents and relevant correspondence prior to the resumption of the hearing in the proceeding, and for an opportunity to obtain the services of an interpreter in the Tamil language. I adjourned the part-heard hearing to 29 January 2024.
40 On 5 January 2024, I made orders including orders permitting access to the Magistrates’ Court documents produced to the Court on 21 December 2023 and arranging for an interpreter provided Mr Satheeskumar and Mr Gopalarathinam appeared in person on 29 January 2024. Also on 5 January 2024, a collection of relevant documents in hardcopy was posted to each of Mr Satheeskumar and Mr Gopalarathinam. Following this, also on 5 January 2024, an email was sent from my Chambers indicating that all documents and relevant correspondence in the proceeding had been posted to Mr Satheeskumar and Mr Gopalarathinam at the addresses they had provided at the hearing on the preceding day. The email was sent to Mr Satheeskumar and Mr Gopalarathinam at the email addresses they had confirmed or provided at the hearing on the preceding day. The email also asked that Mr Satheeskumar and Mr Gopalarathinam confirm receipt of the email, stating that after this a digital copy of the document bundle would be provided to all parties. The document bundle was emailed to Mr Satheeskumar and Mr Gopalarathinam on 18 January 2024, following receipt of confirmation that they were receiving email correspondence. The email correspondence from the Court also sought confirmation that Mr Satheeskumar and Mr Gopalarathinam would appear on 29 January 2024 in person so that an interpreter could be retained. In the end, that confirmation was never provided, so no interpreter was retained by the Court.
41 The part-heard hearing resumed on 29 January 2024 and was attended by Mr Myers, Mr Satheeskumar and Mr Gopalarathinam, all via audio-visual link.
42 At the hearing on 29 January 2024, I ordered pursuant to r 36.01 of the Rules that Mr Myers’ Additional Outline of Submissions dated 3 November 2023 are incorporated in his originating motion. This was to make it clear that the ground for quashing the second and third interim PSIOs based on alleged breach of s 38(1) of the PSIO Act was included in the subject-matter of the proceeding. The defendants had been on notice of this argument for several months so there was no prejudice involved in doing so.
43 At the hearing, I received the Magistrates’ Court documents produced on 21 December 2023 into evidence, subject to a direction that the first two pages would not be relied upon for the truth of their contents.^[26] The first two pages of the Magistrates’ Court documents are an email from the first defendant to the third defendant, and a screenshot of a text message exchange between the first defendant and another individual whose name was redacted. I also received into evidence the covering letter from the Magistrates’ Court under which the Magistrates’ Court documents were produced.^[27] That letter stated that pages 2–4 and 13 included redactions, made due to the sensitive nature of the information arising out of the personal safety intervention order proceedings. Mr Myers applied for an order from this Court requiring the Magistrates’ Court to produce the redacted information. I declined to make that order without prejudice to Mr Myers’ ability to renew the application at a later date. I did not make any such order in view of the absence of representation of the Magistrates’ Court, the lack of notice to the Magistrates’ Court, the desirability of judgment in this proceeding being available before the related VCAT hearing on 1 February 2024, and my view that the redacted information would not be relevant to the resolution of the issues before me in this proceeding.

44 In paragraphs 20 to 23 above, I have summarised the claims made by Mr Myers in the proceeding. In the sections that follow, I address each of those claims in the same sequence.

45 As already noted, in relation to the first interim PSIO, the originating motion claims that this Court should make orders directly varying the Magistrates’ Court’s order made on 10 August 2023.^[28]
46 That is not permissible in a proceeding for judicial review of this kind. The PSIO Act relevantly confers the power to make such orders on the Magistrates’ Court, not this Court on judicial review.
47 The claim for orders varying the first interim PSIO fails.

48 As to the second and third interim PSIOs, there are two bases on which the originating motion claims that this Court should strike them out or quash them.

49 The first basis is that either the Registrar or the relevant Magistrates of the Magistrates’ Court should have found the applications for the PSIOs to be frivolous and vexatious.^[29]
50 Determining whether the applications were frivolous and vexatious would require an assessment of the merits of the material relied upon by the competing protagonists, Mr Myers on the one hand and Mr Satheeskumar and Mr Gopalarathinam on the other. That would be beyond the role permitted to this Court in a proceeding for judicial review. This aspect of the claim to have the second and third interim PSIOs struck out or quashed fails.

51 As already mentioned, during the proceeding, I allowed an amendment to the originating motion formally adding the content of Mr Myers’ submissions that the second and third interim PSIOs are invalid due to the absence of any supporting oral evidence or affidavit when they were made, in breach of s 38(1) of the PSIO Act.
52 The determination of this claim requires findings on the available evidence as to whether the second and third interim PSIOs were made in the absence of any supporting oral evidence or affidavit, and an application of the PSIO Act, properly construed, to the facts as found.
53 Section 38 is headed and provides as follows:

54 Section 35(1) is the principal provision that confers power to grant interim PSIOs on the court, and is summarised in paragraph 4 above. Section 35(2) provides that the court may also make an interim order if ‘the parties to the proceeding have consented to, or do not oppose, the making of an interim order’.
55 Section 13 of the PSIO Act provides for how an application for a PSIO is to be made, and is currently in the following terms:

56 As I explain below in more detail, s 13 has only included references to making the application by ‘declaration of truth’ and electronic communication since 2022. As to interim PSIOs more generally, I have summarised relevant aspects of the PSIO Act in paragraph 4 above.

57 I have had regard to publicly available documents published on the website of the Magistrates’ Court of Victoria at mcv.vic.gov.au/intervention-orders. I take judicial notice pursuant to ss 144(1)(b) and (2) of the Evidence Act 2008 that the Magistrates’ Court has in this way instructed applicants for PSIOs to complete a form available via this webpage. The form does not include an affidavit, but is accompanied by a declaration of truth meeting the requirements of s 13(4) of the PSIO Act. I reproduce the relevant text setting out the declaration of truth available at this webpage below:

58 As already noted, on 29 January 2024 I received the Magistrates’ Court documents into evidence. These included the two applications for interim PSIOs completed by Mr Satheeskumar and Mr Gopalarathinam. These applications were supported by declarations of truth in the above form. No affidavits were included.
59 Mr Myers’ affidavit affirmed 15 November 2023 contained an unofficial transcript of the hearing at which a magistrate granted the second and third interim PSIOs against Mr Myers on 21 August 2023. The transcript included a passage in which the learned magistrate referred to the material before the court. That passage made no reference to an affidavit. Relevantly, it referred only to the applications, which had been declared to be true and correct:

60 I have no reason to doubt the accuracy of the transcript. I infer from the magistrate’s reference to the applications and the declarations supporting them that the court had no other document in the nature of an affidavit before it.
61 That inference is supported by the production of the Magistrates’ Court documents on 21 December 2023. The PSIO application forms include a signed declaration of truth from each of the applicants. Unless an application form supported by a declaration of truth is to be regarded as an ‘affidavit’, there is no affidavit in the Magistrates’ Court documents. Subject to a legal question about whether the application and declaration of truth is an affidavit, I therefore find there was no affidavit.
62 I also infer from both the documentary record of the orders, and the transcript of the hearing before the learned magistrate on 21 August 2023, that there was no appearance by either applicant, or any other witness. I therefore find that there was no oral evidence supporting the application for either of the second or third interim PSIOs.
63 The record of the orders also states that Mr Myers was not served with the application and did not agree to the order. I find that he did not agree to the orders, nor could he be said to have ‘not opposed’ the applications for them.
64 For completeness, I also find that the learned magistrate did not purport to waive the requirement for oral evidence or an affidavit. The transcript provided by Mr Myers shows that the court did not refer to any such waiver.

65 There are four legal questions that now arise. First, was the application for each of the first, second and third interim PSIOs an application within s 35(2) of the PSIO Act? If so, the prohibition in s 38(1) did not apply. Secondly, was the application form declared by each of the applicants as being true and correct to be treated as an ‘affidavit’ within the meaning of s 38(1)(a) of the PSIO Act? Thirdly, did the court implicitly waive the requirement under sub-para (a), within the meaning of s 38(1)(b)? If these three questions are all answered in the negative, then it will be clear the court did not adhere to the prohibition in s 38(1) in granting the interim PSIOs against Mr Myers. In that event, the fourth and final question arises: does breach of s 38(1) render the second and third interim PSIOs invalid?
66 The first question is easily answered: the applications were not the subject of any consent by Mr Myers, and he cannot be said to have ‘not opposed’ them, so the applications did not fall within s 35(2) of the PSIO Act.
67 The second question is also relatively easy to answer: the declarations of truth cannot be treated as ‘affidavits’ within s 38(1)(a). In this regard, it is necessary to consider s 13 of the PSIO Act. Section 13 is entitled ‘How application is to be made’. It relevantly provides in s 13(1)(c) that an application for a personal safety intervention order must ‘if the applicant is not a police officer, be made on oath or by affirmation or by affidavit or by declaration of truth’.
68 Section 13(4) provides that a declaration of truth, relevantly, ‘must include an acknowledgement that the content of the application is true and correct to the best of the applicant’s knowledge and belief’. The applicant must also include an acknowledgement ‘that the applicant knows that making a declaration of truth that the applicant knows to be false is an offence with a penalty of 600 penalty units or 5 years imprisonment or both’. Importantly, s 13(4)(e) provides that a declaration of truth is not required to be witnessed by, or executed before, any other person.
69 The fact that s 13 refers separately to each of a declaration of truth on the one hand, and an affidavit on the other, suggests very strongly that where the PSIO Act refers to an ‘affidavit’, it is referring to something different from a declaration of truth. It is also relevant to note that, under the Oaths and Affirmations Act 2018, an affidavit is a form of evidence in writing that must be witnessed by an authorised person. There are limited exceptions in which an unsworn or unaffirmed affidavit may be received by a court into evidence by an exercise of discretion under particular statutory provisions, but the existence of such discretions does not alter the fundamental characteristics of an affidavit.
70 For these reasons, I have concluded that, where s 38(1)(c) of the PSIO Act refers to an affidavit, it is not contemplating that a document merely supported by a declaration of truth within the meaning of s 13(4) of the PSIO Act would suffice.
71 Turning then to the third question, it is necessary to consider whether the magistrate impliedly waived the requirement for an affidavit within the meaning of s 38(1)(b) of the PSIO Act. As extracted above, immediately following s 38(1), the following subsection appears:

72 A number of additional criteria and conditions then follow. Is s 38(1A) exhaustive of the circumstances in which the court is entitled to grant a waiver? I think so. As Mr Myers contended, s 38(1A) would have no utility if the court was at liberty to waive the requirement in circumstances outside the purview of s 38(1A). It is also relevant that s 38(1)(b) and s 38(1A) were added by the same amending Act at the same time.^[30]
73 It follows that, on the construction of the statutory scheme that I consider to be correct, the Magistrates’ Court had no power to waive the requirement under s 38(1)(a) of the PSIO Act. It could not therefore have impliedly waived that requirement. This was not an application brought by a police officer, so s 38(1A) did not apply.
74 It follows that there has been a breach of s 38(1). I turn now to the fourth question: does this render the second and third interim PSIOs invalid? For the following reasons, I conclude that it does.
75 It is first necessary to consider s 38(2), which provides that nothing in s 38(1)(a) obliges the affected person to give evidence before the interim order is made. Does this provision preserve the validity of an interim PSIO made in breach of the prohibition in s 38(1)? I think not. Section 38(2) refers only to the ‘affected person’. This still leaves potential work to be done by s 38(1)(a): oral evidence or an affidavit could still be provided by some other witness.
76 Even so, it does not necessarily follow from the fact that s 38(1) has been breached that the resultant PSIO is invalid and of no effect.^[31] It is necessary to consider whether Parliament intended that a breach of the provision should lead to invalidity, rather than simply unlawfulness.^[32] In approaching this task, there is no ‘decisive rule’ or ‘ranking of relevant factors or categories’.^[33]
77 The majority of the High Court in Project Blue Sky relied on three factors to ultimately conclude that a breach of the provision in question in that case did not lead to invalidity. Those three factors are considered below.
78 First, the majority considered whether the statutory provision regulated the exercise of an existing function, or was rather an ‘essential preliminary’ to the exercise of a function.^[34] Here, the function in question is conferred on the court by s 35 of the PSIO Act, and the prohibition is imposed, in qualified terms, by a separate provision. Further, the power in s 35 is conferred ‘if a person has applied to the court for a personal safety intervention order’ and s 13 of the PSIO Act provides for various ways in which such an application can be made, only one of which requires an affidavit. This might suggest that Parliament did not intend that s 38 be treated as an essential preliminary to the grant of an interim PSIO. However, there is a difficulty in reaching a conclusion of that kind where the preliminary in question is expressed as an exception to a prohibition, rather than as a positively expressed condition. As extracted above, s 38(1) provides that the court ‘must not’ grant an interim PSIO, save where the exceptions in paragraphs (1)(a) or (b) are met. To my mind, this is suggestive of parliamentary intention that one of the exceptions must exist as an essential preliminary to the grant of an interim PSIO.
79 Second, the majority looked to the nature of the statutory provision, in particular whether it had a ‘rule-like quality’.^[35] Unlike the provision in Project Blue Sky, which concerned matters of policy and related to obligations expressed in indeterminate language, s 38(1) clearly has a rule-like quality. Section 38(1) states that the court ‘must not make an interim order’ unless the exceptions apply.^[36] Whether the exceptions are met can be clearly ascertained. It is a relatively easy matter to determine, in binary terms, whether or not the prohibition applies. Further, the prohibition is expressed in terms that leave no doubt of Parliament’s intention that the court must adhere.
80 Third, the majority considered the ‘public inconvenience’ that would result if non-compliance were to result in invalidity.^[37] The meaning of ‘public inconvenience’ in this context is multi-layered. At one level, it is clear that invalidity will result in public inconvenience: interim PSIOs are granted in serious circumstances where an individual’s physical safety and even life may be in danger. There may be convictions, which rest on the validity of interim PSIOs. In these senses, invalidity undeniably entails public inconvenience. At another level, however, the ascertainment of whether or not an interim PSIO is invalid for breach of s 38(1) is a far easier task to perform than the task considered by the majority in Project Blue Sky.^[38] That is because s 38(1) has a clearer meaning. This point is linked to the previous question of its ‘rule-like quality’. In this sense, there is limited public inconvenience entailed by the task involved in determining validity or invalidity, and less scope for public uncertainty.
81 I have also considered whether there is any logical purpose to be served by adherence to the requirement in s 38(1) for supporting oral evidence or affidavits, which is not also served by a declaration of truth. In this regard, I have noted that applications by declaration of truth were legislated in 2022 and the amending legislation did not address the provisions governing the making of interim applications.^[39] Was this inadvertent, or deliberate? The authorities suggest that there may be cases where the result of giving words their ordinary meaning may be so irrational that the Court is forced to the conclusion that the drafter has made a mistake.^[40] It might be thought that there is nothing to be gained from an additional requirement for oral evidence or an affidavit over and above what is provided by a declaration of truth. In both cases, the applicant or witness would face criminal consequences for a knowing mistruth. What more is to be gained from oral evidence or an affidavit?
82 Although this point carries some weight, there are additional matters capable of justifying the requirement for oral evidence or an affidavit. An interim PSIO can be granted in the absence of the respondent and without notice to them. This could be seriously prejudicial to the respondent and might result in their arrest and criminal prosecution of any contravention. An affidavit or oral evidence is a form of verification that entails the presence of an authorised witness and limits or negates entirely the possibility of confusion about the identity of the person providing the information. The declaration of truth mechanism does not require these safeguards to be met and might result in disputes about the authenticity of signatures or the identity of the person purportedly making the declaration. It cannot be concluded that the requirement for an affidavit or oral evidence in support of an application for an interim PSIO is irrational or of no utility. The language used by the legislature suggests that it is an essential preliminary for a valid grant of an interim PSIO.
83 Further, the presence of an express avenue for waiver suggests that the legislature intended invalidity to result from a breach of the prohibition. What would be the utility of the waiver mechanism if non-compliance with the prohibition resulted in a valid interim PSIO in any event? Although I have not relied on the following point in reaching my conclusion, I also note that equivalent provisions in respect of interim orders under the Family Violence Protection Act 2008 differ materially with respect to the circumstances in which waivers may be granted by the court. In that Act, a waiver can be provided for applications by persons other than police officers made by declaration of truth provided the court has considered whether it is practicable to obtain oral evidence or an affidavit before making the interim order.^[41] That waiver provision was added by the same amending legislation that added s 38(1A) to the PSIO Act.
84 For these reasons, Mr Myers’ contention that the second and third interim PSIOs should be quashed by reason of breach of s 38(1) of the PSIO Act is upheld.

C.3 Failure to consider revocation/variation of second and third interim PSIOs

85 Mr Myers also advanced what I regard to be a claim in the alternative to the quashing of the second and third interim PSIOs. As noted above, the originating motion claimed that the Magistrates’ Court in any event erred in its understanding of the PSIO Act in failing to consider whether to revoke or vary the second and third interim PSIOs.^[42]
86 As already noted, on 4 September 2023, Mr Myers applied unsuccessfully for revocation or variation of the second and third interim PSIOs. On 18 September 2023, Mr Myers again applied, again unsuccessfully, to revoke or vary the second and third interim PSIOs. Mr Myers deposed that the magistrate said that there had to be a change in circumstances pursuant to s 86(2) of the PSIO Act in order for Mr Myers to apply for revocation of those orders.
87 Section 86 provides:

88 Because I propose to quash the second and third interim PSIOs, it is not necessary for me to determine this claim. Mr Myers submitted that, even if I quash the second and third interim PSIOs, I should in any event indicate my views about the merits of his claim that the Magistrates’ Court erred in its understanding of s 86, for general informative or educative purposes. I decline to express any concluded views on this matter. Suffice to say that Mr Myers’ contentions in this regard had some force and might well have been upheld if it had been necessary to determine them. That is because, by reference to the unofficial transcripts of the hearings conducted by the Magistrates’ Court on 4 and 18 September 2023, it does appear open to characterise the learned magistrate’s reasoning as requiring a change in circumstances before the court would grant leave for Mr Myers to seek a variation or revocation of the orders.
89 For example, on 4 September 2023, the learned magistrate said:

91 However, Mr Myers’ application was being brought in circumstances governed by s 86(3), extracted above, which provides an avenue for the court to grant leave under sub-section (1) if it is in the interests of justice to do so, having regard to the reasons the respondent was not present when the interim orders were made. This avenue does not depend on a change in circumstances. It also seems that Mr Myers made his application seeking leave within 21 days after service on him of the purported second and third interim PSIOs, thus meeting the requirement in s 86(4), extracted above. As Mr Myers submitted, subject to other provisions of the PSIO Act, in a proceeding for a personal safety intervention order, the court may ‘inform itself in any way it thinks fit, despite any rules of evidence to the contrary’. This suggests that, at least in respect of an application to revoke an interim PSIO, it would be open to the court to consider any material it sees fit, and to do so without awaiting a contested hearing for a final PSIO. The making of, and perhaps variation of, an interim PSIO requires supporting oral evidence or an affidavit, and this suggests a constraint on that broad discretion in those instances. However that may be, again, there appears to be nothing preventing the court from having regard to such material prior to a contested hearing for a final PSIO, if it sees fit.

92 As already noted, the originating motion included a claim that the delay in dealing with the merits of the applications for the three PSIOs until the scheduled contested hearing in May 2024 was excessive.^[43]
93 Mr Myers relied in this regard on s 42 of the PSIO Act:

94 To the extent that this claim related to the second and third interim PSIOs, it is unnecessary for me to determine the claim due to my intention to quash those orders. The claim remains of utility in respect of the first interim PSIO, which was obtained by Mr Myers against Mr Satheeskumar. There is much force in Mr Myers’ submissions that a delay of many months between the granting of the interim order in August 2023 and the listing of a final contest hearing in May 2024 seems excessive in light of the requirement in s 42(1), ‘as soon as practicable’. As already mentioned, the Magistrates’ Court adopted a Hardman position. It did not provide any information about any constraints that might have necessitated this delay.
95 Given that Mr Myers’ interests are, to some extent, protected by the first interim PSIO, there is a lack of evidence bearing on the reasons for the delay, and it is desirable for me to provide this judgment today, in the interests of justice I have decided not to attempt to determine this claim. If I were to determine it on the current state of the evidence, I might have been compelled to dismiss the claim because Mr Myers would face difficulties in discharging his burden of proof as plaintiff in the proceeding. This, however, seems a curious outcome given that the party with knowledge of the relevant facts has declined to take any active role in the proceeding. These issues should remain undetermined and if necessary to be addressed on another occasion. This judgment should not be regarded as giving rise to any form of res judicata or issue estoppel preventing the issue from being re-agitated.

96 As already noted, the originating motion challenged the validity of provisions of the second and third interim PSIOs that purported to prevent Mr Myers from communicating in writing with Mr Satheeskumar and Mr Gopalarathinam about legal proceedings. To the extent that these provisions impeded Mr Myers’ communications in relation to legal proceedings arising out the present matter, I addressed this issue during the proceeding by my orders on 10 November 2023. I refer to paragraph 32 above. As I have decided to quash the second and third interim PSIOs, it is not necessary to go further into the issues raised by this ground than I already have.

97 In his two sets of written submissions, Mr Myers sought 22 particularised findings from the Court. Save to the extent that the above reasons address some of these matters,^[44] I decline to make any of the other findings sought. It would not be necessary or appropriate for me to make the other findings that are invited given the conclusions I have reached on Mr Myers’ claims as set out above.

^[10] Tucci v Victorian Civil and Administrative Tribunal [2010] VSC 425, [16] (Cavanough J).

^[11] Myers v Satheeskumar (Appeal from VCAT) [2023] VSC 747 (13 December 2023).

^[12] On 29 January 2024, after clarification of the spelling of Mr Gopalarathinam’s name, the Court ordered pursuant to r 36.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) that references to ‘Thuyaparan Gopalarathinab’ be treated as references Mr Gopalarathinam.

^[13] Mr Myers’ affidavits affirmed 20 September 2023 (filed 4 October 2023), 4 October 2023 (filed 5 October 2023), 13 October 2023 (filed 22 October 2023) and 15 November 2023 (filed on that day).

^[14] Exhibit 1, letter from the Magistrates’ Court to the Deputy Prothonotary of the Supreme Court dated 21 December 2023; exhibit 2, 22 page bundle of documents from Magistrates’ Court files in proceedings P11762190 and P11763026, produced to the Supreme Court under cover of Exhibit 1.

^[24] Exhibits P1 and P2, forwarded to the Court as attachments to Mr Myers’ Additional Outline of Submissions dated 3 November 2023.

^[30] Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018.

^[31] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355, [91] (McHugh, Gummow, Kirby and Hayne JJ) (Project Blue Sky).

^[39] Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matter) Act 2022.

^[44] Proposed finding 5.21 in the Additional Outline of Submissions dated 3 November 2023, and the preliminary views expressed on proposed findings 5.8, 5.9 and 5.11 in the Outline of Submissions dated 21 October 2023.

Supreme Court of Victoria

Myers v Satheeskumar & Ors (Judicial Review) [2024] VSC 12 (31 January 2024)