Appeals against intervention orders made by magistrates are no longer considered de novo hearings, following a recent Supreme Court case.
Previously, appeals to the County Court under both the Personal Safety Intervention Orders Act 2010 and the Family Violence Protection Act 2008 were conducted as hearings de novo. That is, the County Court conducted the trial of the application for an intervention order afresh and gave a decision based on the evidence before it. This meant the parties had to give their evidence and be cross-examined again.
In AAA v County Court of Victoria [2023] VSC 13 the Supreme Court held that an appeal to the County Court against an intervention order, or a refusal to make an order, is not an appeal de novo. It is a broad appeal by rehearing that allows for new evidence. It is not a hearing in which the applicant begins again with the magistrate’s decision being disregarded. The parties may adduce new evidence on appeal, but are not required to. The County Court determines the appeal based on both the evidence at first instance and any new evidence before it. The court’s task on appeal is to identify factual, legal, or discretionary error in light of all of the evidence before the court, including any new evidence.
Whilst the focus is on the identification of error, the error may be a factual one. As the County Court reconsiders the application, the error may be that the magistrate made erroneous findings of fact on the evidence available, or reached an erroneous conclusion on the ultimate question of whether the statutory criteria for making the order are satisfied. Further, as the County Court determines the appeal at the time of the appeal, and new evidence may be adduced, it is not necessary to establish that the magistrate made an error based on the evidence before them at the time. It is open to the County Court to find error even if, had it been limited to the evidence before the magistrate, it would have reached the same conclusion as the magistrate.
The decision suggests that the conduct of final hearings in intervention order matters in the Magistrates’ Court will now be open to close examination and scrutiny on appeal.
The commentary in the By Lawyers Intervention Order (VIC) guide has been updated accordingly.