Austin v Dobbs - [2021] VSC 508

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 05218

FIONA AUSTIN	Applicant
v
OSCAR DOBBS & ORS (according to the attached schedule)	Defendants

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	20 August 2021
CASE MAY BE CITED AS:	Austin v Dobbs & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 508

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PRACTICE AND PROCEDURE – Whether proceeding should be reserved for consideration of the Court of Appeal pursuant to Supreme Court Act 1986, s 17B(2) – Whether proceeding should be heard with current Court of Appeal proceeding in related matter – Proceedings arising from same factual controversy – Underlying issues in both proceedings inextricably intertwined – Different defendants involved - Both proceedings involve questions of law – Undesirability of multiplicity of proceedings arising out of the same dispute – Inevitability of appeal – Proceeding reserved for consideration of the Court of Appeal - Miller v Martin (Ruling No 1 of 2021) [2021] VSC 28 – Collins v Black [1995] 1 VR 409.

HER HONOUR:

Fiona Austin has sought judicial review of a decision of the County Court of Victoria on 25 October 2019, striking out her appeal from a Magistrates’ Court order. The matter was struck out on the basis of her non-appearance at a directions hearing on that day. The order that she was appealing was made under the Personal Safety Intervention Orders Act 2010 (Vic) (PSIO Act). It was an order revoking a PSIO Act order made in favour of Oscar Dobbs (Revocation Order). These reasons deal with the request made by the third defendant, Detective Sergeant Dwyer, to reserve the proceeding for consideration to the Court of Appeal pursuant to s 17B(2) of the Supreme Court Act 1986 (Vic) (the Act).

The grounds in the present proceeding include there being no basis to have struck out the County Court appeal. They identify that the directions hearing was requested by a non-party (Victoria Police) and that the plaintiff’s attendance on that date was not required. The parties to the Revocation Order under appeal and now the decision under judicial review are Oscar Dobbs (the applicant for the PSI Order that was ultimately revoked) and the court which made the order.

Before Clayton JR (as she then was), an application was made by a member of the Victoria Police (Detective Sergeant Trent Dwyer) to be joined as a defendant to the present proceeding pursuant to r 9.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The application for joinder was opposed. On 27 November 2019, Clayton JR ordered that Detective Sergeant Dwyer be joined.

Mr Dobbs has not filed an appearance in the present judicial review. The County Court of Victoria have provided a letter stating it will not take an active role in the proceeding in accordance with Hardiman principles[1].
[1]R v Australian Broadcasting Tribunal;…

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: Austin v Dobbs [2021] VSC 508
Case: [2021] VSC 508
Decision Date: 20 August 2021

CaseChat Overview and Summary

The case of Austin v Dobbs involved a dispute which came before the Supreme Court of Victoria. The nature of the dispute was concerned with the appropriate judicial forum and procedural steps for the matter to follow, given its connection to another proceeding already before the Court of Appeal. The parties were Austin, the appellant, and Dobbs, the respondent, with other related parties also being part of the broader litigation context.

The legal issues before the court included determining whether the proceeding should be reserved for consideration by the Court of Appeal under the Supreme Court Act 1986, section 17B(2). Additionally, the court had to decide whether the proceeding should be heard concurrently with another Court of Appeal proceeding involving related matters and stemming from the same factual controversy. The court needed to weigh the necessity of avoiding multiplicity of proceedings against the distinct defendants involved in each case, despite the underlying issues being inextricably intertwined.

The court considered the implications of multiple proceedings arising from the same dispute, emphasising the desirability of resolving such issues in a single forum to avoid unnecessary duplication and complexity. The court acknowledged the inevitability of appeal in the matter and highlighted the importance of ensuring that related legal questions were addressed cohesively. Referencing Miller v Martin (Ruling No 1 of 2021) and Collins v Black, the court determined that the proceeding should be reserved for the Court of Appeal, considering the intertwined nature of the legal issues and the potential for significant judicial economy by consolidating the matters.

Consequently, the court made orders reserving the proceeding for the Court of Appeal and noted that it should be heard concurrently with the related Court of Appeal proceeding. This decision aimed to streamline the resolution of the legal questions at hand and prevent the proliferation of separate judicial processes from the same underlying dispute.

Orders