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:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2018
DATE OF JUDGMENT:	11 December 2018
CASE MAY BE CITED AS:	Austin v Dobbs
MEDIUM NEUTRAL CITATION:	[2018] VSC 755

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PROCEDURE – Application for substituted service – Personal safety intervention order restraining plaintiff from contacting or communicating with first defendant – Use of a process server – Whether personal service impracticable – Financial hardship – Personal Safety Intervention Orders Act 2010 (Vic) pt 3 div 11, ss 93(2)(c), 98 – Criminal Procedure Act 2009 (Vic) s 263 – Civil Procedure Act 2010 (Vic) s 7(1) – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 6.10(1), 84.05(4).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Appeared in person
For the Defendants	No appearance

HIS HONOUR:

Introduction

Ms Fiona Austin appeals ex parte from the decision of Clayton JR dismissing applications for substituted service on the first defendant.

Ms Austin is the plaintiff in two judicial review proceedings remaining before this Court. In these proceedings, she seeks review of the decisions of the Magistrates’ Court of Victoria and the County Court of Victoria, concerning intervention orders obtained by the first defendant Oscar Dobbs.

Mr Dobbs is yet to be served with Supreme Court proceedings. Ms Austin has effected service on the County Court and the Magistrates’ Court. They have filed appearances on the basis that they will not take an active role and will abide by the decision of the Supreme Court in accordance with the principles in R v Australian Broadcasting Tribunal; Ex parte Hardiman.[1]
[1](1980) 144 CLR 13.

Background

Ms Austin is the subject of interim intervention orders made in the Melbourne Magistrates’ Court in August and September 2016, and September 2017 under the Personal Safety Intervention Orders Act 2010 (Vic) (‘PSIO Act’). The intervention orders were made on the application of Mr Dobbs. She says that they were made ex parte in her absence. She appealed to the County Court against the intervention order made in September 2017, but her appeal was out of time.

Ms Austin is also the subject of criminal proceedings in the Magistrates’ Court arising out of alleged breaches of the intervention orders. She strongly resists the intervention orders and criminal proceedings.

The proceedings

Proceeding S ECI 2018 00234 seeks judicial review of the decision of Judge Taft of the County Court made on the 6 June 2018, to strike out an appeal against the interim intervention order granted by the Melbourne Magistrates’ Court in September 2017, on the ground that the appeal was lodged out of time.[2]
[2]PSIO Act s 93(2)(c) requires the notice of appeal to be filed within 30 days after…

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 [2018] VSC 755
Case: [2018] VSC 755
Decision Date: 11 December 2018

CaseChat Overview and Summary

In the matter of Austin v Dobbs, the plaintiff sought to serve legal documents on the defendant through a process server due to concerns about personal safety. The defendant had obtained a Personal Safety Intervention Order against the plaintiff, prohibiting any form of contact or communication. The court was tasked with determining whether the use of a process server was justified under the circumstances, particularly considering the defendant's order and the plaintiff's financial hardship. The legal issues at the heart of this case revolved around the interpretation of the relevant statutes, including the Personal Safety Intervention Orders Act 2010, the Criminal Procedure Act 2009, the Civil Procedure Act 2010, and the Supreme Court (General Civil Procedure) Rules 2015. Specifically, the court had to decide whether the personal service of documents was impracticable and whether the alternative method proposed by the plaintiff was permissible.

The court considered the provisions that allowed for substituted service in situations where personal service was deemed impracticable. It examined the grounds under which such a determination could be made, particularly focusing on the financial hardship of the plaintiff. The court acknowledged the importance of ensuring that the plaintiff's right to be heard was not unduly prejudiced by the defendant's Personal Safety Intervention Order. Ultimately, the court found that the plaintiff's financial hardship and the risk to personal safety justified the use of a process server as a substitute for personal service. The court ruled that the proposed method of service was both practical and compliant with the statutory framework.

In conclusion, the court granted the plaintiff's application for substituted service, allowing the use of a process server to serve the legal documents on the defendant. This decision underscored the necessity of balancing the plaintiff's rights with the defendant's safety concerns, particularly in light of the legislative provisions governing such situations. The court's ruling provided clarity on the permissible methods of service under the specified circumstances, ensuring that the plaintiff could proceed with their legal action without undue impediment.

Orders