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Austin v Dobbs

Austin v Dobbs

Case [2019] VSCA 296 13 December 2019

Judicial Review

Statutory Interpretation

Appeal

Administrative Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0050

BETWEEN

FIONA AUSTIN	Applicant
and
DETECTIVE SERGEANT TRENT DWYER	Respondent

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S APCI 2019 0065

BETWEEN

FIONA AUSTIN	Applicant
and
OSCAR DOBBS & COUNTY COURT OF VICTORIA	Respondents

-------------------------

S APCI 2019 0066

BETWEEN

FIONA AUSTIN	Applicant
and
OSCAR DOBBS & MAGISTRATES’ COURT OF VICTORIA	Respondents

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S APCI 2019 0098

BETWEEN

FIONA AUSTIN	Applicant
and
DETECTIVE SERGEANT TRENT DWYER & MAGISTRATES’ COURT OF VICTORIA	Respondents

-------------------------

SE APCI 2019 0109

BETWEEN

FIONA AUSTIN	Applicant
and
OSCAR DOBBS	Respondent

-------------------------

SE APCI 2019 0110

BETWEEN

FIONA AUSTIN	Applicant
and
OSCAR DOBBS	Respondent

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JUDGES:	WHELAN and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 September, 11 November 2019
DATE OF JUDGMENT:	13 December 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 296
JUDGMENT APPEALED FROM:	Austin v Dwyer [2018] VSC 770 (Derham AsJ) Austin v Dobbs [2019] VSC 355 (Ginnane J) Austin v Dwyer [2019] VSC 545 (Coghlan JA) Austin v Dobbs (No 2) [2019] VSC 588 (Ginnane J)

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JUDICIAL REVIEW – Applications for leave to appeal judgments concerning judicial review of decisions of Magistrates’ Court re adjournment, recusal and ‘special witness’ orders and decision of County Court re extension of time for appeal – Leave refused on all applications – Personal Safety Intervention Orders Act 2010 s 96, Magistrates’ Court Act 1989 s 109, Crimes Act 1914 (Cth) ss 15Y, 15YAB.

PRACTICE AND PROCEDURE – Applications for leave to appeal costs orders – Section 111 Personal Safety Intervention Orders Act 2010 does not apply to proceedings for judicial review – Traditional reluctance to grant leave re costs continues under current legislative regime – Leave refused on all applications – Personal Safety Intervention Orders Act 2010 s 110 – AJH Lawyers v Mathieson Nominees Pty Ltd [2015] VSCA 227, AFP v Opal Storm [2018] VSCA 301 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the First Respondent in S APCI 2019 0098 (Otherwise the respondents did not appear)	Mr C Tran	James Baker, Senior Advocacy Team, Victoria Police

WHELAN JA
KYROU JA:

On 26 August 2016 a young man, Oscar Dobbs, obtained an interim intervention order against his former high school teacher, Fiona Austin. A final order was made on 28 September 2016.

Since those orders were made, there have been over 50 court hearings or court hearing dates in relation to the matter. Ms Austin has been charged with 14 offences, six of which allege breach of the orders. She spent almost a year on remand when her bail was revoked after alleged contraventions of the orders and a condition of her bail. She has appeared either in person or represented by lawyers on many occasions in the Magistrates’ Court. Appeals have been instituted in the County Court. Ms Austin has issued five judicial review proceedings in the Supreme Court. Four of those judicial review proceedings have been decided against her and are now the subject of applications for leave to appeal before this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Austin v Dobbs

Details

AGLC: FIONA AUSTIN Applicant and DETECTIVE SERGEANT TRENT DWYER Respondent [2019] VSCA 296
Case: [2019] VSCA 296
Decision Date: 13 December 2019

CaseChat Overview and Summary

In the matter of Austin v Dobbs, the applicants sought leave to appeal various judgments made by the County Court and Magistrates’ Court. The judgments pertained to decisions regarding adjournment, recusal, and special witness orders in the Magistrates’ Court, as well as an extension of time for appeal in the County Court. The applicants also sought leave to appeal costs orders, arguing that section 111 of the Personal Safety Intervention Orders Act 2010 should apply to proceedings for judicial review.

The primary legal issues before the court involved the applicability of section 111 of the Personal Safety Intervention Orders Act 2010 to proceedings for judicial review, and the court's traditional reluctance to grant leave in relation to costs orders. The applicants argued that the traditional reluctance to grant leave for costs orders should not apply due to the specific provisions of section 111. The court had to determine whether these provisions indeed applied to the costs orders and whether the traditional reluctance to grant leave in such cases should be overridden.

The court considered the arguments put forward by the applicants but found that section 111 did not apply to proceedings for judicial review. The court further held that the traditional reluctance to grant leave for costs orders remains applicable under the current legislative regime. It referred to precedents set in AJH Lawyers v Mathieson Nominees Pty Ltd [2015] VSCA 227 and AFP v Opal Storm [2018] VSCA 301, which upheld this traditional stance. Consequently, the court refused leave on all applications for appeal.

The court's final orders were that leave to appeal the judgments concerning the adjournment, recusal, and special witness orders, as well as the decision on the extension of time for appeal, was refused. Additionally, leave to appeal the costs orders was also refused.

Orders