Austin v Dobbs (No 2) - [2019] VSC 588

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…

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 (No 2)

Details

AGLC: Austin v Dobbs (No 2) [2019] VSC 588
Case: [2019] VSC 588
Decision Date: 29 August 2019

CaseChat Overview and Summary

Austin commenced judicial review proceedings challenging the County Court’s decision to strike out his appeal as out of time and the Magistrates’ Court’s adjournment orders. The respondent, Dobbs, sought to limit the costs Austin could recover, citing the statutory provision restricting costs orders in personal safety intervention order proceedings. The court had to determine whether the judicial review proceedings were subject to the same costs restrictions as personal safety intervention order proceedings.

The court found that the judicial review proceedings were distinct from personal safety intervention order proceedings and, therefore, not subject to the same statutory restrictions on costs. The court held that the Personal Safety Intervention Orders Act 2010 section 111 did not restrict the court’s discretion to award costs in judicial review proceedings. The court reasoned that since the judicial review proceedings were not proceedings for personal safety intervention orders, the statutory provision did not apply. The principle that costs follow the event further supported awarding one set of costs to the prevailing party.

Austin was awarded one set of costs for the judicial review proceedings. The court determined that the costs restrictions applicable to personal safety intervention order proceedings did not extend to judicial review proceedings, allowing for the award of costs to Austin. The decision clarified the scope of the statutory costs restriction and affirmed the court’s discretion to award costs in judicial review proceedings unrelated to personal safety intervention orders.

Orders