SUPREME COURT OF VICTORIA
COURT OF APPEAL	
	
S EAPCI 2023 0134	

ANDREW TOWNS (a pseudonym)	Applicant	
		
v		
		
NATHAN TOWNS (a pseudonym)	Respondent	

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JUDGES:	McLEISH, KENNEDY and WALKER JJA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	On the papers	
DATE OF JUDGMENT:	10 December 2024	
MEDIUM NEUTRAL CITATION:	[2024] VSCA 300	
JUDGMENT APPEALED FROM:	[2023] VCC 1878 (Judge Robertson)	

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PRACTICE AND PROCEDURE – Application for summary dismissal – Where application for leave to appeal concerns Family Violence Intervention Order (‘FVIO’) – Whether application for leave to appeal lacks utility because FVIO has expired – Arguable that application does not lack utility – Application for summary dismissal refused.

PRACTICE AND PROCEDURE – Application for security for costs – Applicant for leave to appeal resident outside jurisdiction and has no substantial assets in jurisdiction – No evidence that order for security would stifle reasonably arguable claim – Applicant’s case on application for leave to appeal plausible – Application for leave to appeal raises issue of public interest – Respondent’s delay in seeking order for security relatively short – Application for security for costs granted.
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Counsel	
Applicant:		In person	
Respondent:		Mr B Petrie	
	
Solicitors	
Applicant:		Not applicable	
Respondent:		Muir Legal	

Mcleish JA
kennedy ja
WALKER JA:
Introduction and summary
1	The applicant and the respondent in this matter are brothers. On 16 November 2018, the Moorabbin Magistrates’ Court made a final family violence intervention order (‘FVIO’) against the applicant and in favour of the respondent. The order was to remain in force for a period of five years. The applicant wished to appeal that order. Pursuant to s 116 of the Family Violence Protection Act 2008 (the ‘Act’), any appeal was required to be filed within 30 days after the day the FVIO was made. In the applicant’s case, that required that he file any appeal on or before 17 December 2018. The time limit prescribed by s 116 cannot be extended.
2	The Act requires an appeal from a FVIO, which lies to the County Court, to be filed in the Magistrates’ Court. On 16 December 2018 (a Sunday) the applicant emailed the Magistrates’ Court attaching a notice of appeal that was signed (the ‘first Form 3’). His signature appeared underneath the words ‘signature of the appellant’. On 17 December 2018 the Family Violence Registrar of the Magistrates’ Court (the ‘Registrar’) emailed the applicant and asked him to sign the notice ‘in the section which states “signature of appellant”’. Later that day the applicant emailed a revised version of the notice of appeal, with his signature placed within the box on the form that stated ‘signature of appellant’ (the ‘second Form 3’). On 19 December 2018 the Registrar emailed the applicant stating that his appeal had been listed before the County Court on 4 February 2019 and attaching what appears to be the first Form 3, now stamped by the Court and signed by the Registrar. 
3	In the course of the appeal proceeding in the County Court, the respondent submitted that the applicant’s notice of appeal had not been filed within time and sought to have the appeal struck out for want of jurisdiction. After a hearing on 15 September 2023 the trial judge accepted the respondent’s submission and on 25 October 2023 the appeal was struck out. 
4	On 16 November 2023 the FVIO expired.
5	The applicant has sought leave to appeal the judge’s decision. He is unrepresented and his proposed grounds of appeal are confused and prolix. Nonetheless, it is apparent from the materials that he has filed that he contends that the judge erred in concluding that his notice of appeal in relation to the FVIO was filed outside the statutory time limit. Rather, he contends, the judge should have found that his application was filed on or before 17 December 2018, within the prescribed statutory period.
6	The respondent, in his written case, seeks to support the judge’s conclusion. In addition, the respondent contends that the application for leave to appeal lacks utility, because the FVIO has expired. In responsive submissions, the applicant contends that the existence of the FVIO harms his reputation and that thus his appeal has utility.
7	The respondent has sought the following orders in this Court:
(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. 
8	These reasons deal with those matters. 
9	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.
10	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.
The summary dismissal application
11	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. 
12	In that regard, the respondent relied upon the decision of this Court in Shire of Yarra Ranges v Russell. 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’. The respondent also relied upon this Court’s decision in Leibler v Air New Zealand Ltd, 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’. In that case there was a dispute as to whether the substantive issue between the parties was moot; 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.
13	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. 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.
14	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. 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.
15	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’. Thus an appeal against the FVIO could be said to have utility even though the FVIO has expired.
16	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 and Cotterill v Romanes 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. It is at least arguable that a similar analysis could apply in relation to the effect of an FVIO. 
17	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.
18	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.
19	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
20	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. 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; and
(b)	there are no discretionary or other considerations which require that security for costs not be ordered.
21	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.
22	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:
(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.
23	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. 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’.
24	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. 
Parties’ submissions
25	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’.
26	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.
27	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.
28	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.
Consideration
29	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.
30	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
31	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. 
32	As the authorities demonstrate, this factor, while not determinative, weighs heavily in favour of an order for security for costs.
Prospects of success of the proposed appeal
33	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.
34	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. 
35	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. 
36	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.
37	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.
38	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. 
39	This factor thus weighs in favour of a refusal of an order for security for costs.
Public interest / public importance 
40	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.
41	This factor weighs against the making of an order for security for costs.
Whether giving of security would stifle a reasonably arguable claim
42	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.
43	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. 
44	Thus this factor weighs in favour of making an order for security for costs.
Whether respondent delayed in applying for security for costs
45	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. The respondent made his application for security for costs on 11 May 2024. That involves a delay of approximately two months. 
46	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.
47	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.
Conclusion on security for costs
48	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.
49	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. 
50	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.
51	For these reasons we would grant the respondent’s application for an order for security for costs.
Quantum of order for security for costs
52	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:
a. 	A review of the Respondent's file relating to the past proceedings and instructions from the client: $9,000.00;
b. 	A review of the Appeal papers: $4,000.00;
c. 	Briefing & Conference with Counsel $5,000.00;
d. 	Preparing Case Response $18,000.00;
e. 	Communications with the Applicant and review of further documents from the Applicant; $20,000.00
f. 	Instructing Counsel at the return of Leave Hearing: $4,000.00;
g. 	Counsel’s fees: $30,000.
53	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.
54	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.
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