Austin v Dobbs
[2019] VSC 355
•29 May 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 00234
| FIONA AUSTIN | Plaintiff |
| v | |
| OSCAR DOBBS | First Defendant |
| COUNTY COURT OF VICTORIA | Second Defendant |
S ECI 2018 00235
| FIONA AUSTIN | Plaintiff |
| v | |
| OSCAR DOBBS | First Defendant |
| MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 March 2019 |
DATE OF JUDGMENT: | 29 May 2019 |
CASE MAY BE CITED AS: | Austin v Dobbs |
MEDIUM NEUTRAL CITATION: | [2019] VSC 355 Revised 3 June 2019 |
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JUDICIAL REVIEW – Personal safety intervention orders – Appeal from intervention order – Appeal filed out of time – County Court decision that no discretion to extend time – Whether County Court made jurisdictional or errors of law in deciding that no power to extend time for appeal – Whether exceptional circumstances exception incorporated from other legislation – Personal Safety Intervention Orders Act 2010 ss 91, 92, 93, 96, 12; Magistrates’ Court Act 1989 s 109; Family Violence Protection Act 2008 ss 114, 116.
JUDICIAL REVIEW – Personal safety intervention orders – Adjournments of contested intervention order hearing – Recusal of Magistrate – Allocated hearing days insufficient - Whether Magistrate should have finally determined matter – Whether Magistrate should have permanently stayed matter on own motion – Duty of Court to assist litigant in person.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Appeared in person | |
| For the first Defendant | Mr J. Bayly | Lampe Family Lawyers |
HIS HONOUR:
The plaintiff has commenced two judicial review proceedings arising out of personal safety intervention orders under the Personal Safety Intervention Orders Act 2010 (‘the Act’) obtained by the first defendant against her, and subsequent hearings relating to those orders in the Magistrates’ Court and County Court.
The Magistrates’ Court and County Court made Hardiman appearances in the respective proceedings, so when I use the term ‘defendant’ it is to identify the first defendant in both proceedings, Mr Dobbs.
Proceeding S ECI 2018 00234 (‘the First Proceeding’) concerns a decision of his Honour Judge Taft of the County Court made on 6 June 2018, striking out the plaintiff’s appeal against intervention orders made by the Magistrates’ Court. The appeal was struck out on the basis that it was lodged out of time. The plaintiff seeks orders quashing his Honour’s decision and remitting the matter to the County Court for an urgent hearing of the appeal, contending that his Honour made a jurisdictional error, an error of law on the face of the record and denied her procedural fairness in deciding that he had no power or discretion to extend the time for her appeal and in not considering the circumstances of the matter.
The appeal was filed on 5 March 2018,[1] almost 6 months after the most recent interim intervention order was made.
[1]Affidavit of Fiona Austin affirmed 14 February 2019 [63]; Exhibit 8 to affidavit of Fiona Austin affirmed 14 February 2019 [entry for 15 March 2018]; Exhibit 12 to affidavit of Fiona Austin affirmed 2 July 2018.
Proceeding S ECI 2018 00235 (‘the Second Proceeding’) is a judicial review proceeding concerning orders of the Magistrates’ Court on 15 May 2018 and 21 January 2019 adjourning hearings concerning the plaintiff’s intervention orders. The plaintiff seeks a permanent stay of the fully contested personal safety intervention order proceeding, or alternatively, an injunction to stop that hearing from taking place until after her appeal to the County Court is heard. The plaintiff’s case is that the hearing of the substantive application would constitute an abuse of process in view of the underlying facts of the proceeding and the extensive delays that have occurred without it being determined.
Background
In order to properly consider the plaintiff’s grounds for challenging these decisions, it is necessary to set out the detailed procedural history of the intervention orders made against her and the criminal charges brought against her.
Factual background
The plaintiff and defendant met while the plaintiff was a teacher at a secondary college. The defendant was an adult student at that College. The plaintiff’s case is that she spoke to the defendant about a matter of concern, and that he then made a complaint to the College about her, and that led to her dismissal.[2]
[2]Plaintiff’s Outline of Submissions filed 25 February 2019 [5].
The first intervention order
On 26 August 2016, the defendant applied to the Magistrates’ Court for a personal safety intervention order against the plaintiff. The application was based on allegations that the plaintiff had inappropriately messaged him on social media over a period of two years, and had made threats of suicide which had caused him anxiety.[3] On that day, the Magistrate granted an interim intervention order against the plaintiff, and on 28 September 2016 made a final intervention order against her.[4] The order was to last for 12 months, until 27 September 2017, unless extended or varied prior to that date.
[3]Exhibit 2 to affidavit of Fiona Austin affirmed 14 February 2019.
[4]Exhibit 3 to affidavit of Fiona Austin affirmed 14 February 2019.
The plaintiff sought a rehearing of the intervention order application pursuant to s 99 of the Act, but her application was refused on 18 January 2017.[5] She stated that at her application for a rehearing, the Magistrate had said that the defendant ‘got to decide’ if there would be a rehearing.[6]
[5]Exhibit 8 to affidavit of Fiona Austin affirmed 14 February 2019 [entry for 18 January 2017].
[6]Exhibit 8 to affidavit of Fiona Austin affirmed 14 February 2019 [entry for 18 January 2017].
The criminal charges
On 18 October 2016, the plaintiff was arrested and charged with breaching the intervention order by continuing to contact the defendant on Facebook Messenger and by failing to remove material about him that she had published on the internet regarding him within 48 hours of being served with the final order. Such alleged conduct also led to charges of stalking and using a carriage service to harass the defendant.[7] After being arrested and released on bail, the plaintiff was also charged with breaching bail conditions by continuing to contact the defendant. In total, she was charged with 14 criminal charges.[8]
[7]Exhibit 16 to affidavit of Fiona Austin affirmed 14 February 2019.
[8]Affidavit of Fiona Austin affirmed 2 July 2018 [23]; Exhibit 15 to affidavit of Fiona Austin affirmed 14 February 2019. The plaintiff stated that she was charged with four offences on 18 October 2016 and 10 on 7 December 2016 relating to the original intervention order: Plaintiff’s Statement in Support 6 March 2019 [24].
On 7 December 2016, the plaintiff was again arrested when she arrived at the Melbourne Magistrates’ Court. Bail was revoked and she was remanded in custody. She remained in gaol until 22 November 2017, when she was released on bail, after having spent about eleven and a half months in gaol on remand.
The criminal charges are still pending and are now in the Magistrates’ Court committal stream.
The second intervention order
On or about 11 September 2017, 16 days before the expiry of the first intervention order, the defendant sought a further intervention order under the Act. The bases of his application was that the first intervention order was due to expire, that the plaintiff had been remanded on 14 charges relating to stalking him and breaching the first intervention order, and his expressed belief that the plaintiff’s conduct would continue if she were released from custody with no intervention order in place.[9]
[9]Exhibit 12 to affidavit of Fiona Austin affirmed 14 February 2019.
The Magistrates’ Court granted a further interim intervention order which remains in force until final orders are made, it is varied or revoked or the application is withdrawn.[10] No such final order, variation or withdrawal has occurred.
[10]Exhibit 12 to affidavit of Fiona Austin sworn 14 February 2019.
There have been many hearings or mentions in the Magistrates’ Court concerning the intervention order and criminal proceedings.
I will consider the plaintiff’s two proceedings in turn.
The first proceeding S ECI 2018 00234 - the County Court order on 6 June 2018
On 5 March 2018, the plaintiff appealed to the County Court against the intervention orders made by the Magistrates’ Court, including the second interim intervention order made on 11 September 2017, which was then in force.[11] The grounds in the Notice of Appeal raise in detail challenges to the issuing of intervention orders without notice, the fact that the defendant was never required to prove any of his allegations to obtain the orders, and matters concerning the handling by the Magistrates’ Court and Victoria Police of the proceedings, including the lengthy delays that have occurred. She contended that the Magistrates’ Court hearing contravened her right to a fair hearing, the presumption of innocence to which she was entitled, and ss 35 and 99 of the Act.
[11]Exhibit 12 to affidavit of Fiona Austin affirmed 14 February 2019.
On 28 May 2018 the plaintiff applied to the County Court for a suppression order under the Open Courts Act 2013 on the grounds that she would be prejudiced in the concurrent criminal proceedings by the publication of the details of the intervention order appeal, and to prevent ‘crippling humiliation and embarrassment’.[12] A mention to hear this application was listed for 6 June 2018.[13]
[12]Exhibit 13 to affidavit of Fiona Austin affirmed 2 July 2018.
[13]Affidavit of Fiona Austin affirmed 2 July 2018 [61].
At that hearing, Judge Taft did not hear the suppression order application as he struck out the plaintiff’s appeal on the basis that it was filed out of time.[14] His Honour decided that he had no statutory or other discretion to extend the time for an appeal.
[14]Exhibit 14 to affidavit of Fiona Austin affirmed 2 July 2018.
The first proceeding seeks judicial review of that order.
The plaintiff’s grounds
In the First Proceeding, the plaintiff seeks orders quashing the order of Judge Taft on 6 June 2018 and remitting the appeal to the County Court for an urgent rehearing.
The plaintiff relies on the following grounds:
Judge Taft’s failure, on 6 June 2018, to exercise the discretion available to him to allow an appeal in exceptional circumstances when lodged out of time was a jurisdictional error.
The decision not to consider the exceptional circumstances surrounding the Notice of Appeal being lodged out of time increased the unnecessarily harsh effect of the legal proceedings upon me and was an error of law on the face of the record.
Judge Taft’s failure to give any consideration to the circumstances of this matter, to question, discuss or comment on the facts of the case was unreasonable and denied me procedural fairness.
As previously mentioned, Judge Taft struck out the plaintiff’s appeal which was expressed to be against at least three orders of ‘8 September 2017[15], 28 September 2016 and 26 August 2016’, as her appeal was filed late, on 5 March 2018. It is evident that His Honour considered that he had no discretion or power to extend the appeal period.
[15]This may have been intended to refer to 11 September 2017.
Relevant legislation
The sections of the Act relevant to appeal rights against intervention orders are:
91 Who may appeal
(1)A party to a proceeding under this Act may appeal against an order of the court in the proceeding or a refusal of the court to make an order (a relevant decision).
(2)Despite subsection (1), an appeal against an order referred to in section 95 may be made only with the consent of the relevant person under that section.
92Court to which appeal must be made
The appeal must be made to –
(a) the County Court; or
(b)the Trial Division of the Supreme Court, if the court that made the relevant decision was—
(i)the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder; or
(ii)the Children's Court constituted by the President of the Court or the Chief Magistrate who is a dual commission holder.
93 Notice of appeal
(1)A person makes an appeal under this Subdivision by filing notice of the appeal with the court that made the relevant decision.
(2) The notice must—
(a) include the prescribed particulars; and
(b) be signed by the appellant; and
(c)be filed within 30 days after the day the relevant decision was made.
(3)The appropriate registrar for the court must serve notice of the appeal on—
(a)the other parties to the proceeding in which the relevant decision was made; and
(b)if the appeal relates to a personal safety intervention order for a protected person who is a child and the application for the order was made with the consent of a parent, that parent; and
(c)if the appeal relates to a personal safety intervention order for a protected person who is a child and the order was made without the child's consent, a parent of the child with whom the child normally or regularly resides; and
(d)if the appeal relates to a personal safety intervention order for a protected person who has a guardian, the guardian.
(4)The appropriate registrar for the court must also cause the notice of appeal to be transmitted—
(a) to the County Court if the appeal is to that Court; and
(b) to the Supreme Court if the appeal is to that Court.
…
96 Conduct of appeal
(1)The appeal is by way of a rehearing by the County Court or the Supreme Court.
(2)On the appeal, the County Court or Supreme Court may—
(a)confirm the relevant decision; or
(b)set aside the relevant decision; or
(c)vary the relevant decision and make any other order the Magistrates' Court or Children's Court could have made and exercise any other powers that the Magistrates' Court or Children's Court may have exercised; or
(d)make a determination under section 176E(2) of the Family Violence Protection Act 2008 and make any order the Magistrates' Court or Children's Court could have made and exercise any other powers that the Magistrates' Court or Children's Court may have exercised under Division 2 of Part 9A of that Act; or
(e)give a mediation direction under Division 2 or Part 3.
98 Application of certain Acts to appeals
The provisions of this Act, the Magistrates' Court Act 1989 or the Children, Youth and Families Act 2005 (as the case requires) so far as applicable and with any modifications and adaptations as are necessary extend and apply to appeals under this Division.
126 Application of Magistrates' Court Act 1989 and rules
(1) Part 5 (other than sections 100(1)(d) and 109) of the Magistrates' Court Act 1989 and any rules made under that Act in relation to civil proceedings (other than rules made for the purposes of section 109 of that Act) do not apply to proceedings under this Act.
(2) Despite subsection (1), for the purposes of enforcement of an order for costs made under section 111—
(a) Division 5 of Part 5 of the Magistrates' Court Act 1989 and any rules made for the purposes of that Division apply in respect of the order; and
b) any rules made under that Act relating to, or necessary for, proceedings for enforcement of a costs order apply for the purposes of proceedings for enforcement of the order under that Division.
The following section of the Magistrates’ Court Act 1989 is also relevant:
109 Appeal to Supreme Court from final order made in civil proceeding
(1) A party to a civil proceeding in the Court may appeal to the Supreme Court, on a question of law, from a final order of the Court in that proceeding.
(2) An appeal under subsection (1)—
(a) must be instituted not later than 30 days after the day on which the order complained of was made; and
(b) does not operate as a stay of any order made by the Court unless the Supreme Court so orders.
(3) Subject to subsection (2), an appeal under subsection (1) must be brought in accordance with the rules of the Supreme Court.
(4) An appeal instituted after the end of the period referred to in subsection (2)(a) is deemed to be an application for leave to appeal under subsection (1).
(5) The Supreme Court may grant leave under subsection (4) and the appellant may proceed with the appeal if the Supreme Court—
(a) is of the opinion that the failure to institute the appeal within the period referred to in subsection (2)(a) was due to exceptional circumstances; and
(b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.
(6) After hearing and determining the appeal, the Supreme Court may make such order as it thinks appropriate, including an order remitting the case for re-hearing to the Court with or without any direction in law.
(7)An order made by the Supreme Court on an appeal under subsection (1), other than an order remitting the case for re-hearing to the Court, may be enforced as an order of the Supreme Court.
The decision
His Honour did not provide written reasons for his decision that he could not extend the time for the appeal to be brought. Exhibited to one of the plaintiff’s affidavits is the record of decision – ‘result of appeal’. In it, his Honour’s decision on appeal is recorded as follows:
Appeal struck out – no jurisdiction.
Matter struck out as Appeal lodged out of time.[16]
[16]Exhibit 14 to affidavit of Fiona Austin affirmed 2 July 2018.
From this record, the parties agreed that the Judge considered that he had no discretion to extend the time for the plaintiff’s appeal.[17] His decision was made pursuant to s 93 of the Act, which states that a notice of appeal ‘must… be filed within 30 days after the day the relevant decision was made’. The notice of appeal, being lodged 175 days from the relevant interim orders of 11 September 2017, fell far outside this time limit. Therefore, the key issue in the First Proceeding is whether his Honour was correct, or whether the Act does in fact confer a power or discretion upon a County Court judge to extend time for the filing of a notice of appeal.
[17]Transcript of Proceedings, Austin v Dobbs (Supreme Court of Victoria, Ginnane J, 8 March 2019), 10 (‘T’).
The parties’ submissions about the Judge’s order
The defendant as a preliminary point argued that judicial review was not available for two of the intervention orders that the plaintiff sought to have quashed, being the orders of 26 August 2016 and 28 September 2016. He submitted that these orders were moot and had no continuing legal effect, having been ultimately superseded by the interim orders of 11 September 2017. Accordingly, the plaintiff had no standing to challenge those earlier orders.[18] Because of the conclusions that I reach below, it is unnecessary to decide this point, but in any event, the plaintiff would have had standing to appeal against the order of 11 September 2017.
[18]Maritime Union of Australia v Anderson (2000) 100 FCR 58; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480.
The plaintiff’s submissions
The plaintiff submitted that the Judge made an error of law by misinterpreting s 93 of the Act as meaning that appeals were barred if filed more than 30 days after the relevant order was made. The basis for this submission was s 98 of the Act, outlined above, which provides for the application of the Magistrates’ Court Act 1989 to appeals from personal safety intervention orders, ‘so far as applicable and with any modifications and adaptations as are necessary’.[19]
[19]The plaintiff initially also argued that the Personal Safety Intervention Order Act was unconstitutional and that her rights under s 24 of the Charter of Human Rights and Responsibilities Act 2006 had not been respected. After some discussion with the Court, the plaintiff did not pursue those submissions.
The plaintiff argued that s 98 contemplated the application of the provisions of s 109 of the Magistrates’ Court Act to the late filing of a notice of appeal pursuant to ss 91 and 93 of the Act. Section 109 governs appeals in civil proceedings on questions of law to the Supreme Court from final orders on questions of law. Relevantly, subsections (4) and (5) provide that such applications filed after 30 days are deemed to be applications for leave to appeal, which leave may be granted if the failure to institute the appeal within time was due to exceptional circumstances and would not materially prejudice the case of any other party. The plaintiff argued that the s 109(4) and (5) exceptions should be ‘modified’ and ‘adapted’ pursuant to s 98 of the Act and then applied to an appeal brought under s 93. She also pointed out that s 126 of the Act specifically excluded the operation of the Magistrates’ Court Act apart from ss 100(1)(d) and 109, and that therefore those sections were intended to apply to appeals under s 93. To hold otherwise would render s 98 inapplicable.
The plaintiff emphasised the importance of a right of appeal, which the legislature had clearly intended to be available, and argued that such a right was particularly important in this case as the Act is heavily weighted towards an applicant for an intervention order. An appeal provided a safeguard to persons against whom intervention orders were granted, and ensured that time limits did not become ‘instruments of injustice’.[20] The plaintiff stressed the significant adverse effects of an intervention order on the person against whom it is made. She contended that they have their name permanently recorded in criminal and police data bases and commit an offence if they contravene the order. The person who obtains the intervention order has complete control of the life of the person bound by it and the order can last for an indefinite period. Once the interim intervention order is made, the person against whom it is made is presumed to be guilty. She argued that the legislation is inherently unfair.
[20]Gallo v Dawson (1990) 93 ALR 479, 480.
The plaintiff further submitted that, if a discretion existed to extend the appeal period under s 93 of the Act, it ought to have been exercised in her case due to the exceptional nature of her proceedings. She elaborated this point in the following submission:
based on the circumstances of the case, the fact that these proceedings were brought against me in retaliation, and the circumstances in regards to the school, which was shut down, and their not-for-profit status was removed. They can hardly be described as ordinary circumstances, I would have thought.[21]
[21]T 56.
The plaintiff submitted that the decision of Carroll v Browne,[22] on which the defendant relied, and which I discuss below, was wrongly decided and should not be followed. In any event, it concerned completely different legislation in the Family Violence Protection Act 2008 (‘The FVP Act’).
[22][2018] VSC 253 (‘Carroll’).
The defendant’s submissions
The defendant first submitted that the County Court correctly decided that it had no power or discretion to hear the plaintiff’s claim. Section 93(2)(c) of the Act required that conclusion. Further, it was consistent with the interpretation given to s 116 of the FVP Act by this Court in Carroll,[23] a provision relevantly identical to s 93.
[23][2018] VSC 253 [62].
The defendant denied that s 98 of the Act operated to incorporate the provisions of s 109(4) and 109(5) of the Magistrates Court Act into the text of ss 91 and 93. He contended that an appeal under s 91 was radically different to an appeal under s 109 of the Magistrates’ Court Act. An appeal under s 91 is a statutory appeal by way of de novo rehearing, in which the appellate court is required to give the decision it believes ought to have been given at first instance. Further evidence may be given, errors of either fact or law can be argued, and the appeal is decided on the law as it stands at the time of rehearing. An appeal under s 109, however, is more properly characterised as a proceeding in the nature of judicial review, functioning as a statutory complement to this Court’s constitutionally entrenched supervisory jurisdiction in a manner akin to s 148 of the Victorian Civil and Administrative Tribunal Act 1998. Because of this fundamental dissimilarity, the provisions of s 109 are not ‘applicable’ to s 93 under s 98. Therefore, the provision for extensions of time in exceptional circumstances for appeals under s 109 are not incorporated into the strict requirement under s 93 that appeals be lodged within 30 days. This conclusion was consistent with the decision in Carroll, in which there was no suggestion that s 121 of the FVP Act, which was relevantly identical to s 98 in this case, operated to confer a discretion to extend time.
Secondly, the defendant submitted that the plaintiff had not identified any circumstances that could be regarded as exceptional within the meaning of s 109(5). Accordingly, her claim for relief should be denied in any event.[24]
[24]See Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599, 602, 611 (Bell, Gageler and Keane JJ).
Analysis
The decision of Richards J in Carroll is important for the determination of this issue. That case concerned an appeal under ss 114 and 116 of the FPV Act to set aside orders, the first of which in May dismissed Mr Browne’s application for an intervention order against Ms Carroll, and the second in October which awarded Ms Carroll indemnity costs against him. Those sections, which are substantially similar to ss 91 and 93 of the Act provide:
114 Who may appeal
(1) A party to a proceeding under this Act may appeal against an order of the court in the proceeding or a refusal of the court to make an order (a relevant decision ).
(2) Despite subsection (1)—
(a) an appeal against the making of a counselling order may be made only by the respondent for the order; and
(b) an appeal against an order referred to in section 118 may be made only with the consent of the relevant person under that section.
116 Notice of appeal
(1) A person makes an appeal under this Subdivision by filing notice of the appeal with the court that made the relevant decision.
(2) The notice must—
(a) include the prescribed particulars; and
(b) be signed by the appellant; and
(c)be filed within 30 days after the day the relevant decision was made.
…
The County Court held that the 30 day time-limit prescribed by s 116 for appeals under s 114 ran from the last time that any orders had been made in a particular matter, and not from the time of any particular order itself. Therefore, although Mr Browne’s appeal was only lodged in October, the Court held that he was able to challenge both the May order dismissing his application and the October order that he pay Ms Carroll’s costs, despite his appeal being filed within 30 days of the October orders only.[25]
[25]Browne (a pseudonym) v Carroll (a pseudonym) [2018] VCC 158, [32]-[33].
Justice Richards, exercising this Court’s judicial review jurisdiction, issued an order in the nature of prohibition prohibiting the County Court from hearing the appeal against the May order. Her Honour held that the 30 day time limit in s 116 ran from the date of each order and that the appeal against the May order was therefore filed out of time. There being no discretion to extend time, leave to appeal should have been refused. On the subject of extensions of time under s 114, her Honour stated that:
It was common ground that the County Court has no jurisdiction to hear an appeal against a relevant decision made more than 30 days before the notice of appeal is filed, there being no power to extend time.[26]
Earlier in the judgment, her Honour stated that:
As to timing, s116(2)(c) provides that the notice of appeal must be filed within 30 days after the day the relevant decision was made. There is no provision for an extension of time to appeal. In other cases the County Court has held that the FVP Act provides for a strict mandatory appeal period.[27]
[26]Carroll [2018] VSC 253, [62] (citations omitted).
[27]Ibid [27], citing Summers (a pseudonym) v McKenzie (a pseudonym) [2015] VCC 2015, [29]-[30] (Judge Gamble ) and Sky (a pseudonym) v Sky (a pseudonym) [2018] VCC 417, [14]–[15] (Judge Murphy ).
It appears however that no argument was put to Richards J regarding the operation of s 121, which is substantially similar to s 98 of the Act and which would according to Ms Austin’s argument presumably apply s 109 of the Magistrates’ Court Act to appeals under s 114 of the FVP Act.[28] In fact, it was common ground between the parties in Carroll that the FVP Act made no provision for extensions of time to appeals under s 114. Accordingly, the decision does not determine the issue before this Court in the first proceeding. It is also relevant that the purposes of the two Acts are not identical.
[28]Though such an argument was made to and rejected by the County Court in Sky (a pseudonym) v Sky (a pseudonym) [2018] VCC 417.
However, the decision is nonetheless relevant, as the following two paragraphs from Richard J’s judgment demonstrate:
[Mr Browne’s proposed interpretation] would create ongoing uncertainty about the status of final orders and would be at odds with the aim of providing an effective system of family violence intervention orders. A central feature of that system is that there are criminal sanctions for breach of these orders. The broad construction would prolong, perhaps indefinitely, the contestability of intervention orders made by the Magistrates Court, and is not consistent with the legislative purpose identified in ss1 and 2 of the FVP Act.
The fact that the FVP Act does not make provision to extend time to appeal does not, in my view, support a construction of order in s114 that includes previous orders of the court, whenever made. To the contrary, it indicates a deliberate legislative choice to restrict appeals to those made within 30 days of an order being made, and to promote the certainty and finality of orders made under the FVP Act.[29]
[29]Carroll [2018] VSC 253, [52]-[53].
While addressing a different legal issue in different though related legislation, her Honour clearly identified the importance of certainty and finality of intervention orders, considerations which are relevant to the determination of this issue.
In my opinion, the Act does not provide for any extension of the 30 day time for filing appeals. Section 93(2)(c) requires a notice of appeal be filed within 30 days after the day the relevant order was made. That did not occur in this case as the notice of appeal was not filed until 5 March 2018.[30]
[30]Affidavit of Fiona Austin affirmed 14 February 2019 [63]; Exhibit 8 to affidavit of Fiona Austin affirmed 14 February 2019 [entry for 15 March 2018]; Exhibit 12 to affidavit of Fiona Austin affirmed 2 July 2018.
In reaching my conclusion as to the absence of any avenue for extending the time for an appeal I refer to the following features of the Act. The appeal contemplated by s 93 is by way of rehearing. Section 98 states that the provisions of the Magistrates’ Courts Act ‘so far as applicable and with any modifications and adaptations as are necessary extend and apply to appeals under this Division’. But those words do not change the character of the appeal.
Nor does s 126 lead to the conclusion that the 30 day appeal period provided for in s 93(2)(c) can be extended. Section 109 of the Magistrates’ Court Act to which it refers concerns only appeals on questions of law, whereas the appeal to the County Court is by way of rehearing. The words of s 98 of the Act extend and apply the provisions of the Magistrates’ Court to appeals under Division 11, which include s 93 appeals ‘so far as applicable and with any modifications as are necessary’. That is not sufficient to apply the exception in s 109(5) to a fundamentally different form of appeal.[31]
[31]Section 100(1)(d) of the Magistrates’ Court Act which is referred to in s 126 of the Act appears to have no direct application to this case.
The provisions for an extension of time for an appeal on a question of law contained in s 109(5) are not applicable to appeals by way of rehearing which have no counterpart in the Magistrates’ Court Act.
The reason why there is no extension of the appeal period contained in s 93 is apparent. There are good reasons to require certainty for the status of personal intervention orders. To imply the power to extend time for appeals against such orders when the legislation contains no express words permitting an extension of time would undermine their certainty.
Further, where provisions similar to s 98 have been held to apply sections of one act to another ‘so far as applicable’, that applicability has generally been clearer than in the present case. For instance, in Director of Public Prosecutions v Burgess,[32] the Victorian Court of Appeal held that 567A(5) of the Crimes Act 1958 applied the provisions of s 574 of that Act to appeals by the Director of Public Prosecutions against sentence.[33] But there again the applicability of s 567A(5) to s 574 was significantly clearer than in the current case, as it stated:
The Director of Public Prosecutions or a legal practitioner on his behalf may appear on behalf of Her Majesty on any proceedings under this section and the provisions of sections 573, 574, 576, subsection (5) of section 579, and sections 580, 581 and 583 with respect to procedure shall so far as those provisions are applicable and with such modifications and adaptations as are necessary extend and apply to appeals under this section and in particular with the modifications that any reference in those provisions to "appellant" shall be read and construed as if it were a reference to "respondent" and any reference to "Part" were a reference to "section 567A".
[32](2001) 3 VR 363. See also Gao v Zhang (2002) VR 245.
[33]Ibid 364 (Winneke P), 366-367 (Phillips JA), 378-380 (Batt JA).
Conclusion in the First Proceeding
In my opinion, his Honour Judge Taft made no jurisdictional error or error of law on the face of the record. He was correct to conclude that there was no power to extend the time contained in s 93 for bringing an appeal against the intervention orders.
It follows from that conclusion that his Honour was unable to consider the individual circumstances of the case and did not deny the plaintiff procedural fairness by not doing so.
The first proceeding (S ECI 2018 00234) must be dismissed.
The Second Proceeding S ECI 2018 00235 – the Magistrates’ Court hearings of 15 May 2018 and 21 January 2019
The second proceeding concerns the Magistrate’s Court hearings on 15 May 2018 and 21 January 2019. The plaintiff contended that the Magistrate conducting each of those hearings erred in their dealing with the intervention order issue.
The plaintiff seeks the following orders:
i.A permanent stay, in accordance with rule 6.01 of the Magistrates’ Court (Personal Safety Intervention Orders) Rules 2011 (Vic), of the fully contested personal safety intervention order proceedings currently listed for a hearing in the Magistrates’ Court of Victoria on 2 April 2019.
ii.Alternatively, an injunction to stop the Final Intervention Order hearing, listed to commence on 2 April 2019, from taking place until after the appeal in the County Court, on which this order is based, has completed.[34]
[34]Amended Originating Motion filed 24 August 2018.
The first decision – 15 May 2018
On 15 May 2018, the Magistrates’ Court adjourned the plaintiff’s criminal charges to a mention hearing on 21 January 2019 and extended the plaintiff’s bail.[35] The defendant’s intervention order application appears also to have been listed for that same date, 15 May 2018, for a one-day contested hearing.[36]
[35]Exhibit 7 to affidavit of Fiona Austin affirmed 2 July 2018.
[36]Exhibit 8 to affidavit of Fiona Austin affirmed 2 July 2018.
The plaintiff relied upon the following grounds:
Magistrate Keil’s failure, on 15 May 2018, to hear the final intervention order that was adjourned from 11 October 2017 to 20 November 2017 and then to 15 May 2018, was an error of law on the face of the record.
Magistrate Keil’s failure to give any consideration to the circumstances of this matter, to question, discuss or comment on the facts of the case was unreasonable and denied me procedural fairness.[37]
[37]Amended Originating Motion filed 24 August 2018.
The hearing had been intended as a contested hearing of the plaintiff’s criminal proceeding, however the Police Prosecutor informed the Magistrate that the two days allocated would be insufficient because of the number of witnesses that would need to be called as the plaintiff was contesting ‘every word’.[38] The plaintiff submitted that she had ‘always maintained that [she] was disputing every word’.[39] The criminal proceeding was therefore adjourned for a contested hearing on 21 January 2019.
[38]Transcript of Proceedings, The Police v Fiona Austin (Melbourne Magistrates’ Court, Magistrate Keil, 15 May 2018) (‘TM’), 7.
[39]Exhibit 8 to affidavit of Fiona Austin affirmed 14 February 2019 [entry for 15 May 2018].
At the commencement of the hearing counsel, who had previously appeared for Ms Austin, stated in effect that he was obliged to withdraw and apparently did so during the first part of the hearing. The police prosecutor stated that Ms Austin had told him that ‘every word’ was in issue and he estimated that the committal would take seven days.[40]
[40]TM 29.
The Magistrate stated he did not consider that he should hear the matters because of his prior involvement in the matters and conclusions that he had reached within them. The plaintiff stated that there was nothing new since the parties were last at Court save that she was representing herself. She said that there was no reason to adjourn the matter as it had been delayed and adjourned for 17 months, that there was no reason why the Magistrate could not continue to hear the matter as it was part heard and that it should proceed that day and then be adjourned to continue another time, without more mentions, court time and time wasting.[41] She said that she had always been ‘disputing every single thing’.[42] She also requested that the police return her laptop computer.[43]
[41]TM 13.
[42]TM 14.
[43]TM 16.
The plaintiff protested that her life had been on hold since the making of the interim intervention order on 26 August 2016 and the matter could not keep on being delayed.[44] She said that there had been at least 24 court sessions.[45] She contended that the intervention order was invalid and the rehearing that was supposed to occur had not occurred.[46]
[44]TM 17.
[45]TM 28.
[46]TM 34-35.
Throughout the hearing on 15 May 2018 the plaintiff expressed significant frustration that the intervention order and criminal hearings had taken so long to be dealt with. She particularly argued that the interim intervention order, which had been in place since September 2017, should not have continued for so long without a final hearing. She was also critical of the police’s handling of the matter.
The Magistrate decided that he should withdraw from the case as he had reached certain conclusions as to Ms Austin’s judgment.[47] He decided to adjourn the matter because the ‘time frame to which this matter has been allocated isn’t sufficient’.[48] He adjourned the proceeding until 21 January 2019 and extended bail.[49] The plaintiff protested on the ground that the hearing was supposed to have been the final hearing of the intervention order and that the matter should have proceeded that day.[50] She said that her life in contrast to the defendant’s had stopped and the defendant had still had not had to prove anything. She pressed for a hearing of the interim intervention order. The Magistrate said that the interim order remained in place until the final intervention order hearing.
[47]TM 36.
[48]TM 17.
[49]TM 31.
[50]TM 31.
The plaintiff argued that the Magistrate committed an error of law at this hearing by adjourning the hearing, and argued that instead the matter should have been finally dealt with on that day.
Magistrate Keil’s decision has already been challenged by Ms Austin in judicial review proceedings summarily dismissed by Derham AsJ on 10 December 2018.[51] That proceeding is referred to in the plaintiff’s chronology and was referred to by Magistrate Kilias during the hearing on 21 January 2019. It was a challenge to what Ms Austin described as the Magistrate’s refusal to conduct the hearing of the criminal charges and to instead adjourn the proceedings for another mention. Derham AsJ found that the Magistrate had not made a jurisdictional error or error of law on the face of the record because his decision not to hear the criminal proceedings was based on two valid grounds: first that the Magistrate had previously heard aspects of the case and considered that he might be seen to have ‘apprehended bias’ concerning it, and secondly that while the charges had been listed for a two day hearing the prosecution later came to consider that seven days would be required.
[51]Austin v Dwyer [2018] VSC 770.
The plaintiff’s submissions
The plaintiff’s submissions principally related to the second hearing of 21 January 2019 and her contention that the intervention order proceedings brought against her should have been either struck out or permanently stayed. However, these submissions are also relevant to what she submitted should have occurred on 15 May 2018 and so I will summarise them at this point. They focused mainly on the conduct of the proceedings and the length of time that they have occupied.
The plaintiff submitted that the proceedings and decisions made so far had been ‘unjustifiably oppressive’, arguing that the length of time that had elapsed, the alleged destruction of evidence by police, the presumption of guilt applied to her, the excessive use of adjournments and the alleged prejudice shown to her by the large number of Magistrates who had dealt with her case meant that, overall, it was not possible for her to receive a fair hearing in the Magistrates’ Court.
She also submitted that she had not been accorded procedural fairness, citing an Australian Law Reform Commission’s report[52] which said that decisions without procedural fairness may curtail a person’s liberty, affect their freedom of movement, damage their reputation and affect their economic well-being, all of which had occurred to her.
[52]Australian Law Reform Commission, Traditional Rights and Freedoms: Encroachments by Commonwealth Laws (Report No 129, December 2015).
She then submitted that there had been an abuse of process in her case, citing Aon Risk Services Australia Limited v Australian National University[53] to demonstrate the importance of ‘the just resolution of the real issues in civil proceedings with minimum delay and expense’.[54] She argued that while the causes of the delay in her matter were different, being adjournments, the effect was the same, being an abuse of process. She particularly emphasised the two and a half year delay between the initiation of proceedings against her and her hearing before this Court, at which time she still had not had a hearing of the final intervention order matter. She submitted that this delay was especially egregious when due regard was given to s 42(1) of the Act, which requires that after a Court makes an interim order it must ensure that a hearing is listed for a decision about the final order as soon as practicable.
[53](2009) 239 CLR 175.
[54]Ibid 210 (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
She emphasised that in the two and a half years no evidence has been tested and that no case has been established against her, and submitted that the granting of ‘special witness’ and ‘protected witness’ orders in favour of the defendant have made her appear dangerous and criminal. Nothing has been proved against her and the existence of the intervention orders has been used to justify the creation of additional orders that further restrict her rights and ability to defend herself. She submitted that there has been a miscarriage of justice to her detriment, and that the number of court sessions and the length of time they had taken meant that the current proceedings are vexatious, harassing and oppressive. On this point she cited the statement of Gaudron J in Ridgeway v R,[55] that the notion of an abuse of process extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious invalidity’.[56]
[55](1995) 184 CLR 19.
[56]Ibid 75 (citations omitted).
She summarised her submissions on this point as follows:
The progress of this matter has brought the administration of justice into disrepute, it has resulted in extreme and permanent harm and damage being done to me. The allegations made against me by Oscar Dobbs are malicious and vindictive. The legal proceedings he commenced against me are oppressive and inherently unfair. The intervention order proceedings should be struck out or permanently stayed.[57]
[57]Plaintiff’s Outline of Submissions filed 25 February 2019, [103].
She contended that the Magistrates’ Court has violated the rules of procedural fairness and that she has been jailed and could not work in her profession as a result of the lies that she alleged that the defendant had told and the invalid intervention orders that he had obtained against her.
When asked by the Court what Magistrate Keil should have done on 15 May 2018 and what Magistrate Kilias should have done on 21 January 2019,[58] the plaintiff stated that, on 15 May, Magistrate Keil should have heard the matter rather than acceding to the prosecution’s request to adjourn it.[59] She stated that, on 21 January 2019, Magistrate Kilias should have stayed the matter permanently as an abuse of process, though she admitted that she had not in fact asked for such a stay and had instead asked for the matter to be adjourned until after the hearing of these judicial review proceedings.[60] She however insisted that Magistrate Kilias should have stayed the matter on his own motion, as she was an unrepresented litigant.[61] I refer to those submissions in more detail below.
[58]T 26.
[59]T 26.
[60]T 28.
[61]T 30.
The defendant’s submissions
The defendant’s submissions substantially related to the plaintiff’s abuse of process argument. He accepted that this Court could make an order restraining an inferior court from continuing to hear a matter in a wide range of circumstances. However, the defendant submitted that none of those circumstances applied in this case, as the Magistrates’ Court plainly had jurisdiction to hear the matter. There was no reason for the interim order to be stayed while the substantive application remained on foot, and declining to do so would be a better use of scarce resources.
Further, discretionary considerations against interfering with the procedures of the Magistrates’ Court weighed heavily against the orders sought by the plaintiff. Only in exceptional circumstances would the Court intervene in procedural decisions made in the course of a Magistrates’ Court proceeding.[62] If, after the substantive hearing, the plaintiff was aggrieved by any substantive or procedural decisions made by the Magistrates’ Court during the hearing, she will be able to remedy those grievances through the statutory rehearing mechanism.
[62]Victorian Workcover Authority v BSA Ltd [2017] VSCA 276, [10].
While a superior court can stay proceedings in an inferior court,[63] including because of inordinate delay in bringing proceedings, most instances of such stays have involved criminal proceedings where the Court only has to examine the effect of delay on the accused. However, in civil proceedings, like the present proceedings, different considerations apply as the rights of both parties have to be balanced.
[63]Jago v District Court of New South Wales (1989) 168 CLR 23; Herron v McGregor (1986) 6 NSWLR 246; Walton v Gardiner (1993) 177 CLR 378.
The defendant also submitted that the matter had in fact been listed for final hearing several times, but that on each of those occasions the plaintiff had had issues with her lawyers, or had not wanted the final hearing of the intervention order to be heard separately to the criminal proceedings. Accordingly, she was to a degree, the author of the misfortune that she now sought to use to have the matter indefinitely stayed.[64]
[64]T 101-102.
Analysis
The Magistrate did not hear the final intervention order application for two reasons: first he decided that he should disqualify himself because of his involvement in previous hearings that he had conducted and secondly because the Court time allocated was insufficient. The Magistrate had to determine whether the hearing should proceed. He focused on the hearing of the criminal charges, but his reasoning applied equally to the civil intervention order proceedings.
Once the Magistrate decided that he should not hear the charges and that there were insufficient days allocated to complete the matter, then he was justified in taking the course that he did. The Magistrate heard submissions from the plaintiff about the considerable delay that had occurred in dealing with the intervention proceedings. But he decided that he should not hear the proceedings, and he therefore had no option but to adjourn them.
My conclusions are similar to those of Derham AsJ in the third proceeding S ECI 2018 00261, which the plaintiff commenced for judicial review against Detective Sergeant Dwyer and the Magistrates’ Court of Victoria concerning the hearing of 15 May 2018, seeking orders that:
The decision by Magistrate Keil on 15 May 2018, to refuse to conduct the hearing of the criminal charges and the order to adjourn the proceedings for another mention, be quashed or set aside and remitted back to the Magistrates’ Court for the fully contested hearing to take place.[65]
[65]Amended Originating Motion filed 24 August 2018.
His Honour ordered that the proceeding be summarily dismissed because he did not consider that there was any real prospect of the proceeding resulting in the quashing of the orders of the Magistrates’ Court of 15 May 2018. There was no error of law on the face of the record. The Magistrate had correctly recused himself from further hearing of the criminal charge proceeding. That recusal necessitated the adjournment of the criminal charge proceedings. Once the plaintiff made it clear that she required every witness to be called it became clear that the trial would inevitably last longer than the two days listed, so the criminal charges needed to be adjourned to a date when a different Magistrate could hear the charges over a longer period.
The defendant did not argue that the decision of Derham AsJ prevented the plaintiff challenging the hearing of 15 May 2018 in this proceeding.
The second decision – 21 January 2019
The plaintiff’s initial challenge to the 21 January 2019 hearing, was that Magistrate Kilias had failed to conduct the fully contested final intervention order hearing. Her grounds as included in her amended originating motion are that the Magistrate:
−failed to consider my submissions to the court for an adjournment until after the judicial review process and the underlying proceedings have been completed;
−tried to return my written submissions so the court would have no record of my submissions;
−did not address the issue of the applicant, Oscar Dobbs, failing to attend the final intervention order hearing listed to take place on that day;
−allowed a 'non-party' with a significant conflict of interest (the criminal proceedings are based on the existence of an intervention order) to make submissions to the court and to participate in the proceedings;
−adjourned the final, fully contested intervention order hearing, in accordance with the request of the ‘non-party’, to the 2 April 2019, without explaining how the fully contested final intervention order, with around 14 witnesses, will be heard at the same time as a committal mention;
−claimed his making of this order was in accordance with the Magistrates’ Court practice of 'fast tracking', within 949 days, fully contested personal safety intervention order hearings so they are heard at the same time as committal mentions (there is no such practice note);
−did not consider the options open to him to ensure the proceedings were conducted in a fair and just manner;
−failed to consider the history of these proceedings, the malicious and vindictive false allegations made by Oscar Dobbs against me, the perjury committed by Oscar Dobbs and the refusal of Oscar Dobbs to prove the allegations he has made against me;
−failed to stay these vexatious proceedings, as a consequence of the abuse of process that had taken place over the preceding 878 days.
However, in oral submissions to this Court, the plaintiff’s case was put differently and was that the Magistrate of his own initiative should have dismissed the intervention proceedings as an abuse of process.
The defendant did not attend that hearing. The prosecution intervened as an interested party and sought an adjournment of the intervention order to the same date as the committal mention on 2 April 2019.
The Magistrate adjourned both the criminal and intervention proceedings until 2 April 2019 because he understood that neither the prosecution nor the plaintiff wished the hearings to proceed on 21 January 2019.
The plaintiff contended that the Magistrate committed an error of law at this hearing by not permanently staying the proceeding, a proceeding which she contended was a manifest abuse of process, when she was self-represented and was not in a position herself to apply for such a stay. Thus in her grounds she stated that the Magistrate ‘failed to stay these vexatious proceedings, as a consequence of the abuse of process that had taken place over the preceding 878 days’. The plaintiff acknowledged that such an order would ordinarily be made only upon an application by a party, but argued that because she was self-represented, the Magistrate should have proactively identified the abuse of process and ordered a permanent stay of his own motion. This submission raised the issue of whether the continuation of the proceeding would be an abuse of process and also the scope of a judicial officer’s duty to assist a self-represented litigant.
The plaintiff contended that she did not realise that she could seek to have the whole proceeding stayed. Her application to the Magistrate was to adjourn the intervention proceedings until after these judicial review proceedings. He did adjourn it until 2 April 2019 for a mention.
When dealing with self-represented litigants, judicial officers must ensure, to the extent possible, a fair trial and ‘equality of arms’ by providing due assistance to such litigants. Such a duty recognises the disadvantage self-represented litigants face in Court, principally due to their lack of professional legal skills and their lack of objectivity. As Bell J stated in Tomasevic v Travaglini:[66]
Every judge in every trial, both criminal and civil, has an overriding duty to ensure the trial is fair. A fair trial is the only trial a judge can judicially conduct. The duty is inherent in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR. The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.
Most self-represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.
The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. The Family Court of Australia has enunciated useful guidelines on the performance of the duty.[67]
[66](2007) 17 VR 100 (‘Tomasevic’).
[67]Ibid 129-130 [139]-[141].
Although this statement is directed towards trials and final hearings, the duty of a judicial officer extends to interlocutory and procedural steps that occur before, and lead up to, the trial or final hearing.[68]
[68]Ibid 119 [89].
However, the duty of the judicial officer must be viewed in light of the inherent restraints posed by the adversarial system in which they operate. In Tomasevic Bell J went on to state that:
The judge cannot become the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented. The assistance must be proportionate in the circumstances - it must ensure a fair trial, not afford an advantage to the self- represented litigant.[69]
[69]Ibid 130 [142].
More recently in Matsoukatidou v Yarra Ranges Council,[70] Bell J elaborated upon this the limits of the assistance that a Judge can provide:
However, under both the common law and s 24(1) there is a boundary that cannot be crossed by virtue of the judicial nature of the function of the court or tribunal, which requires maintenance of both the appearance and reality of neutrality in the proceeding between the parties. Under the common law, the limits of this boundary are marked out by the fundamental requirement that advice and assistance provided by the court or tribunal must not be such as to give rise to a reasonable apprehension of bias in the mind of a properly informed fair-minded observer. Under s 24(1), the limits are marked out by the fundamental requirements of judicial independence, impartiality and fairness and respect for the human rights of other participants.[71]
[70](2017) 51 VR 624.
[71]Ibid 670 [134] (citations omitted).
In my opinion, had the Magistrate done what the plaintiff asserted he should have done, the ‘boundary’ identified by Bell J would have been crossed. By raising applications that he thought that the plaintiff should have made, the Magistrate would have ceased being an impartial arbiter and would have instead begun to act as advocate for the plaintiff. To strike out a proceeding to assist a self-represented litigant, in the absence of an application by a party, would result in the surrender of judicial neutrality.
The plaintiff did not apply to have the proceeding dismissed as an abuse of process. Both sides requested that the hearing not proceed on that day.
I do not consider that the Magistrate was obliged to dismiss the proceeding of his own motion as an abuse of process. The Magistrate did not make any jurisdictional error in failing to do so in view of the submissions that were made to him that the matters should not proceed on the 21 January 2019.
Nor do I consider that the Magistrate erred by any of the actions which the plaintiff alleged which I have set out in paragraph 80. The key consideration to be kept in mind is that none of the parties wished the hearing on 21 January 2019 to proceed.
The second proceeding (S ECI 2018 00235) must be dismissed.
Conclusion
Therefore both proceedings are dismissed.
A long time has passed since the initial intervention order was made. In accordance with the obligations imposed on the Magistrates’ Court by s 42(1) of the Personal Safety Intervention Orders Act, the final hearing of the intervention order proceeding must be given an early listing with the necessary allocation of days to ensure that it is heard and determined with priority.
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