Austin v Dobbs (No 2)
[2019] VSC 588
•29 August 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: | On the papers |
DATE OF JUDGMENT: | 29 August 2019 |
CASE MAY BE CITED AS: | Austin v Dobbs (No 2) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 588 |
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JUDICIAL REVIEW — Personal safety intervention orders — Costs — Unsuccessful judicial review applications of orders of County Court striking out appeal because out of time and also of Magistrates’ adjournment orders — Statutory provision restricting costs order — Judicial review proceedings not proceedings for personal safety intervention orders — No restriction on Court’s discretion to award costs — Costs follow the event — Appropriate to award one set of costs — Personal Safety Intervention Orders Act 2010 s 111.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the First Defendant | Mr J Bayly | Lampe Family Lawyers |
HIS HONOUR:
On 29 May 2019, I dismissed two judicial review proceedings commenced by the plaintiff, Ms Fiona Austin.[1] In the first proceeding, S ECI 2018 00234, Ms Austin sought judicial review of a decision of a Judge of the County Court of 6 June 2018 striking out her appeal against an interim personal safety intervention order made by the Magistrates’ Court in favour of the first defendant, Mr Oscar Dobbs, on the basis that the appeal was commenced outside the mandatory appeal period. In the second proceeding, S ECI 2018 00235, Ms Austin sought judicial review of orders made by the Magistrates’ Court on 15 May 2018 and 21 January 2019 that adjourned the final contested hearing of Mr Dobbs’ personal safety intervention order application, in circumstances where an interim intervention order was in place.
[1]Austin v Dobbs [2019] VSC 355.
I directed the parties to file submissions about costs with my decision then to be made on the papers.
Costs are discretionary but generally ‘follow the event’, with the unsuccessful party being ordered to pay the costs of the successful party. This is not to punish the unsuccessful party but to compensate the successful party. Nevertheless, the decision as to costs is discretionary, so the particular circumstances of the case must be considered.
The Personal Safety Intervention Orders Act 2010 (‘PSIO Act’) addresses costs in s 111 as follows:
111 Costs
(1)Each party to a proceeding for a personal safety intervention order under this Act must bear the party’s own costs of the proceeding.
…
(3) Despite subsections (1) and (2) –
(a) the court may make an order about costs if the court decides that exceptional circumstances warrant otherwise in a particular case;
(b) if the court is satisfied in a particular case that the making of any application under this Act was vexatious, frivolous or in bad faith, the court may award costs against the applicant.
‘Court’ is defined as the Magistrates’ Court or, if the application is being dealt with in the Children’s Court, that court.[2]
[2]Personal Safety Intervention Orders Act 2010 s 4.
Background
The first proceeding
The first proceeding in this Court – S ECI 2018 00234 – arose from the plaintiff seeking to appeal to the County Court against the second interim intervention order made by the Magistrates’ Court in September 2017. The appeal was said to be made under subdivision 1 of division 11 of the PSIO Act, but a Judge of the County Court struck out the appeal because the notice of appeal was not filed within the 30 day period prescribed by s 93(2)(c) of the Act. The plaintiff sought judicial review of that decision, arguing that the Judge erred in finding that s 93 barred all appeals lodged outside of the 30 day period, without any consideration of the reasons for delay and that time could be extended. I dismissed the first proceeding as I found that the Judge was correct to find that that there was no power to extend time.
The second proceeding
The second proceeding – S ECI 2018 00235 – arose from two hearings at the Magistrates’ Court, on 15 May 2018 and 21 January 2019, at which the final contested hearing of the first defendant’s application for a personal safety intervention order and criminal charges were listed for hearing and determination. On both occasions, the final contested hearing and the criminal charges were adjourned. On 15 May 2018, the hearings were adjourned because insufficient time had been allowed for the hearings and because the Magistrate disqualified himself due to his involvement in previous hearings. The plaintiff sought judicial review of the decision to adjourn the hearing of the final intervention order application because it further delayed the proceeding which already had had an adverse impact on her life and which she contended was an abuse of process and because the decision denied her procedural fairness. I decided in effect that once the Magistrate determined that he ought not hear the proceeding, that necessitated the adjournment of both the criminal charge proceedings and civil proceedings. In addition, once the plaintiff made it clear that she required every witness to be called, insufficient time had been allocated to hear the proceedings.
On 21 January 2019, the hearing was again adjourned as neither the prosecution nor the plaintiff wished it to proceed on that day. The plaintiff sought judicial review of that decision, claiming that the Magistrate should of his own motion struck out the intervention order application. I did not accept that argument because I considered that it would have been inappropriate for the Magistrate of his own motion to have struck out the proceeding as an abuse of process.
The first defendant’s submissions
The first defendant argued that the general rule that ‘costs should follow the event’ ought to be applied to the two proceedings. He referred to McHugh J’s judgment in Latoudis v Casey including the statement that:
…it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. Its function is compensatory.[3]
[3]Latoudis v Casey (1990) 170 CLR 534, 567.
The first defendant further submitted that s 111(1) of the PSIO Act did not apply to these proceedings. He argued that a judicial review proceeding challenging the County or Magistrates’ Courts decisions concerning a personal safety intervention order application was not itself a proceeding ‘for’ a personal safety intervention order. Rather, it was a proceeding to determine whether a court fell into jurisdictional error or made an error of law on the face of the record. He argued that the judicial review proceedings did not seek to enforce a right or duty that owed its existence to the Act. Properly characterised, the applications relied on the Court’s power to ensure that courts acted within the scope of their jurisdiction.
Despite s 111(1), s 111(3)(b) provides that a Court, which is defined as the Magistrates’ Court or Children’s Court, may make an order about costs if ‘the making of any application under this Act was vexatious, frivolous or in bad faith’. The first defendant submitted that s 111(3)(b) did not permit the conduct of a party in a judicial review proceeding to be considered when making an order for costs under s 111(1) and that suggests it does not apply to judicial review proceedings.
Finally, the first defendant argued in the alternative that the ‘exceptional circumstances’ of the two proceedings warranted an order under s 111(3)(a) that the plaintiff pay his costs. That was because the dispute between the plaintiff and him was based on straight forward facts capable of resolution in the Magistrates’ Court or County Court, without the need to take the dispute to the Supreme Court.
The plaintiff’s submissions
The plaintiff argued that either she should be awarded the costs of the proceedings, or alternatively, that each side should bear their own costs. She argued that a costs order against her in favour of the first defendant would increase the injustice to her caused by his applications for personal safety intervention orders. They had affected her adversely including her capacity to obtain employment.
She submitted that her judicial review proceedings were necessary to attempt to stem the continuing abuse of process associated with the interim intervention orders. They had been in place since August 2016, and she had not been given the opportunity to contest the allegations upon which the orders were based. Although her judicial review proceedings were not successful, they were not unreasonable. They were not ‘caused’ by her, in that having been denied justice in the courts, she simply sought to protect her rights and interests against the first defendant’s unmeritorious personal safety intervention order applications.
As a further argument, the plaintiff submitted that s 111(1) did apply to judicial review proceedings. She argued that the PSIO Act referred to a ‘proceeding’ without specifying the type of proceeding or the court in which it was commenced. She referred to s 97(2), which states that ‘nothing in this section prevents an appeal from the County Court or the Supreme Court on the basis of a jurisdictional error’. Section 97(1) states that ‘there is no appeal against the decision of the County Court or the Supreme Court under section 96’. Section 96 provides that a Division 11 appeal is to be by way of rehearing and stipulates that the appeal court can confirm, vary or set aside the relevant decision.
The plaintiff argued that if the first defendant’s arguments were accepted, then the PSIO Act would provide no protection to person being accused and automatically sentenced under the Act.
The plaintiff argued that the matter was a long way from being over and that she would still pursue arguments that her human rights had been breached and concerning Chapter III of the Commonwealth Constitution. The matter and associated court proceedings will take years to conclude and has already been before the courts on 46 days.
The plaintiff next argued that the first defendant’s application for a costs order under s 111(3) should be rejected as the judicial review proceedings were the only way that she could address the injustice that the first defendant’s unsubstantiated claims and the inferior courts’ denial of procedural fairness caused her. She could not pay any cost order made against her. If s 111(3)(a) applied, a costs order should be made in her favour as the first defendant’s applications for intervention orders were vexatious, frivolous and in bad faith.
The plaintiff finally submitted that the Court has a flexible discretion as to the award of cost as the Victorian Court of Appeal stated in Chen v Chan:
The Rules of Court permit significant flexibility in determining questions of costs. In particular, the Court is entitled to examine the realities of the case and will attempt to do ‘substantial justice’ as between the parties on matters of costs.[4]
[4]Chen v Chan [2009] VSCA 233, [10] (Maxwell P, Redlich JA and Forrest AJA), citing Spotless Group Limited v Premier Building and Consulting Pty Ltd and Northern Suburban Properties Pty Ltd [2008] VSCA 115, [14] (Redlich JA).
In the exercise of that discretion, the Court should order the first defendant to pay her costs or in the alternative each party should bear their own costs.
Analysis
I will repeat the words of s 111(1):
Each party to a proceeding for a personal safety intervention order under this Act must bear the party’s own costs of the proceeding.
This provision limits the discretion of the Magistrates’ Court or Children’s Court to award costs in an application for a personal safety intervention order. However, the question is whether it limits the discretion of this Court to award costs in a judicial review proceeding of Magistrates’ Court or County Court orders.
For s 111(1) to apply the two proceeding must be properly characterised as proceedings for a personal safety intervention order under the PSIO Act.
The question of whether statutory provisions restricting the award of costs apply to judicial review proceedings has arisen in other contexts. Commonwealth industrial relations legislation is one example, including an oft litigated provision which provides that ‘a party to a proceeding (including an appeal) in a matter arising under this Act’ shall not be ordered to pay costs incurred by any other party to the proceeding.[5] The test for determining whether a proceeding is a matter arising under the Act, is ‘whether the right or duty that is sought to be enforced owes its existence to a provision of the Act’.[6] However, proceedings to prevent a court from purporting to exercise a power under an Act which it does not have, or, as in the present case, seeking to force a court to exercise a power under an Act, such as extending time for an appeal, which it does not possess, will not be matters arising under the Act or applications made under the Act.[7]
[5]See Industrial Relations Act 1988 (Cth) s 347 and Fair Work Act 2009 (Cth) s 570.
[6]See Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission of New South Wales (No 2) (2007) 159 FCR 274 [1] (Kiefel J), quoting Re McJannet; Ex parte Australian Workers’ Union of Employees (Qld) [No 2] (1997) 189 CLR 654, 656 (Brennan CJ, McHugh and Gummow JJ) (‘Re McJannet’).
[7]Re McJannet at 657 (Brennan CJ, McHugh and Gummow JJ); see also the decision concerning the Corporations Act 2001, Re Struthers (liq of Project Management, Architecture and Construction Interior Pty Ltd) (No 3) (2005) 64 NSWLR 392 (Brereton J).
I do not consider that either of the plaintiff’s judicial review proceedings was a proceeding for a personal safety intervention order under the PSIO Act. The words ‘a proceeding for a personal safety intervention order...’ in s 111(1) do not include judicial review proceedings. Those words limit the costs restriction provision in s 111(1) to proceedings that are for a personal safety intervention order, which would include applications for an interim or final intervention order and applications for the variation or extension of such orders or appeals from such orders. The scope of s 111(1) is more restrictive that the industrial relations legislation as it includes the additional requirement that a proceeding be ‘for a personal safety intervention order’, not just that it be a proceeding ‘in a matter arising under’ an Act.
In my opinion, the plaintiff’s two judicial review proceedings are not proceedings ‘for’ a interim or final personal safety intervention order under the PSIO Act. The first sought judicial review of decision of a Judge of the County Court that subdivision 1 of division 11 did not permit an extension of time for appeals lodged out of time. The plaintiff sought to compel the County Court to exercise a discretion to extend time, a power which it did not have.
In the second proceeding, the plaintiff sought judicial review of interlocutory decisions or failures to make decisions that the first defendant’s proceeding in the Magistrates’ Court was an abuse of process. The plaintiff alleged that Magistrates at two separate hearings erred by adjourning the proceedings. She sought a permanent stay or permanent injunction preventing the continuation of the contested personal safety intervention order proceeding. But, the plaintiff did not request the Magistrates to make such orders. In that context, the judicial review proceeding challenging the Magistrates’ orders or failure to make orders is not a proceeding for a personal safety intervention order under the PSIO Act.
I therefore consider that the Court has a discretion to award costs.
The next question is whether costs should follow the event. In my opinion, they should. Costs are not awarded to punish the unsuccessful party to the litigation, but to compensate the successful party. Impecuniosity does not generally prevent an order for costs, nor does futility, meaning the likely inability of a party to be able to pay a costs order.[8]
[8]See most recently, Northern Territory a v Sangare [2019] HCA 25.
Both the plaintiff’s proceedings were unsuccessful. I have considered whether the policy of the PSIO Act suggests that no costs should be ordered even when unsuccessful proceedings are commenced in this Court arising from proceedings under the PSIO Act. The Act’s policy is that in the usual case each party will bear their own costs in the Magistrates’ Court or Children’s Court, but it does not deal with the award of costs if proceedings are brought in this Court challenging on judicial review grounds proceedings in the Magistrates’ Court or decisions of the County Court on appeal.
I have considered the plaintiff’s submissions about the conduct of and length of time taken by the applications in the Magistrates’ Court. I referred in my first judgment to the Magistrates’ Court’s obligation to conduct the final hearing of the intervention order application.
I have to have primary regard to the conduct of the proceedings in this Court and cannot base my decision as to costs on the merits of the application for, and grant of, the interim intervention orders. Those matters are for the Magistrates’ Court to decide. I do not consider that the plaintiff has established that any conduct of the first defendant in this Court justifies a departure from the general rule that a party who brings unsuccessful proceedings must pay the costs of the other party on a standard basis.
But there is one other matter. In all the circumstances of the case I do consider that, because of the overlap between the two proceedings at least in respect of the legal issues, the plaintiff should have to pay the first defendant only one set of costs. The two proceedings were heard at the same time. To achieve that outcome, it is appropriate to order that the plaintiff pay the first defendant’s costs of the first proceeding and make no order as to the costs of the second proceeding.
Conclusion
The plaintiff must pay the first defendant’s costs of the first proceeding on a standard basis to be taxed by the Costs Court in default of agreement. There will be no order for the costs of the second proceeding.
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