PRACTICE AND PROCEDURE – Where judge dismissed recusal application – Where applicant’s incarceration prevented her from receiving communications – Whether judge acted with actual or apprehended bias – Leave to appeal refused.
PRACTICE AND PROCEDURE – Whether judge erred in refusing request for adjournment – Whether judge erred in striking out statement of claim – Leave to appeal refused.
PRACTICE AND PROCEDURE – Whether individual police officer was appropriate defendant –Whether ‘Victoria Police’ was appropriate defendant – Leave to appeal refused.
PRACTICE AND PROCEDURE – Whether judge erred in making self-executing order to replead on pain of dismissal – Where time allowed was five weeks – Where applicant was unrepresented – Where proceeding concerned false imprisonment – Leave to appeal granted – Appeal allowed.
This is yet another chapter in an unhappy saga[1] involving a bitter dispute between Ms Fiona Austin, the applicant; Mr Trent Dwyer, the first respondent; and the State of Victoria (‘the State’), the third respondent.
[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.
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AGLC
Austin v Dwyer [2023] VSCA 227
Case
[2023] VSCA 227
Decision Date
CaseChat Overview and Summary
The case of Austin v Dwyer involved an applicant who sought leave to appeal a decision of the Supreme Court of Victoria. The applicant, represented by counsel, alleged that she had been falsely imprisoned by a police officer. The Supreme Court had dismissed her application to recuse the judge and had struck out her statement of claim. The court had also refused to adjourn the proceeding, and it had made a self-executing order to replead on pain of dismissal, allowing the applicant five weeks to do so. The applicant argued that the judge had erred in these decisions, and that the individual police officer was not the appropriate defendant, and that 'Victoria Police' should have been sued instead.
The legal issues before the court included whether the judge had acted with actual or apprehended bias, whether he had erred in refusing to adjourn the proceeding, in striking out the statement of claim, and in making the self-executing order to replead. The applicant argued that her incarceration prevented her from receiving communications, and that she had not been given adequate time to replead. The court considered authorities such as Aon Risk Services Australia Ltd v Australian National University, and Uber Australia Pty Ltd v Andrianakis, in determining the issues.
The court found that the judge had not acted with bias, and that he had not erred in refusing the adjournment or in striking out the statement of claim. However, the court found that the judge had erred in making the self-executing order to replead, given that the applicant was unrepresented and the proceeding concerned false imprisonment. The court held that the order was oppressive, and that it ought not to have been made. The court granted leave to appeal and allowed the appeal, setting aside the order and remitting the proceeding to the Supreme Court for further consideration.
The court did not address the issue of whether the individual police officer or 'Victoria Police' was the appropriate defendant. The final orders of the court were to set aside the self-executing order made by the Supreme Court, and to remit the proceeding to the Supreme Court for further consideration. The applicant was granted leave to appeal and the appeal was allowed.