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

---

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.

---

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…

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 [2019] VSC 355
Case: [2019] VSC 355
Decision Date: 29 May 2019

CaseChat Overview and Summary

In the matter of Austin v Dobbs, the appellant, Austin, sought to appeal against a County Court decision upholding a personal safety intervention order (PSIO) made against them. The respondent, Dobbs, who was the protected party, opposed the appeal on the grounds that it was filed out of time. The Court of Appeal was tasked with determining whether the County Court had the discretion to extend the time for filing the appeal, and whether it had made any jurisdictional or legal errors in deciding that it had no such power. Additionally, the Court needed to consider whether the "exceptional circumstances" exception, which allows for the extension of time in other legislative contexts, could be incorporated into the Personal Safety Intervention Orders Act 2010.

The Court of Appeal found that the County Court had no discretion to extend the time for filing an appeal under the PSIO Act. It held that the County Court did not make any jurisdictional or legal errors in reaching this conclusion. The Court also clarified that the "exceptional circumstances" exception, found in other legislation, was not incorporated into the PSIO Act, thereby reinforcing the statutory time limits for appeals. Furthermore, the Court examined the conduct of the Magistrate who presided over the contested hearing, determining that while there were procedural irregularities, they did not necessitate the recusal of the Magistrate or a permanent stay of the matter.

The Court of Appeal ultimately dismissed the appeal, affirming the County Court's decision. The appeal was considered out of time, and no grounds for extending the time were found under the PSIO Act. The Court emphasized the importance of adhering to statutory time limits for appeals and underscored the duty of the Court to assist litigants in person, while also upholding the integrity of the legal process.

Orders