Austin v Dwyer
[2023] VSCA 227
•19 September 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0068 |
| FIONA AUSTIN | Applicant |
| v | |
| TRENT DWYER & ORS (ACCORDING TO THE ATTACHED SCHEDULE) | Respondents |
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| JUDGES: | NIALL JA and J FORREST AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 August 2023 |
| DATE OF JUDGMENT: | 19 September 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 227 |
| JUDGMENT APPEALED FROM: | [2023] VCC 889 (Judge Tran) |
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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.
Civil Procedure Act 2010, s 9; Victoria Police Act 2013, ss 72, 74, 75.
AML (a pseudonym) v Longden Super Custodian Pty Ltd [2023] VSCA 170; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; Roberts v Harkness (2018) 57 VR 334; Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580.
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| Counsel | ||
| Applicant: | In person | |
| Respondent (Dwyer): | Mr DP McCredden | |
| Respondent (Victoria Police): | Mr DP McCredden | |
| Respondent (State of Victoria): | Mr DP McCredden | |
Solicitors | ||
| Applicant: | ||
| Respondent (Dwyer): | Victorian Government Solicitor’s Office | |
| Respondent (Victoria Police): | Victorian Government Solicitor’s Office | |
| Respondent (State of Victoria): | Victorian Government Solicitor’s Office | |
NIALL JA:
J FORREST AJA:
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.
[1]See, eg, Austin v Dobbs [2018] VSC 755 (Garde J); Austin v Dwyer [2018] VSC 770 (Derham AsJ); Austin v Dwyer (Special Witness Proceeding) [No 1] [2019] VSC 206 (Daly AsJ); Austin v Dobbs [No 1] [2019] VSC 355 (Ginnane J); Austin v Dwyer (Special Witness Proceedings) [No 2] [2019] VSC 545 (Coghlan JA); Austin v Dobbs [No 2] [2019] VSC 588 (Ginnane J); Austin v Dobbs [2019] VSCA 296 (Whelan and Kyrou JJA); Austin v Dwyer [2019] VSC 837 (Forbes J); Austin v Dwyer (Costs Ruling) [2020] VSC 18 (Forbes J); Austin v Dobbs [2021] VSC 508 (Forbes J); Austin v Dwyer [2021] VSCA 306 (Beach and Sifris JJA); DPP (Vic) v Austin [2022] VCC 1571 (Judge O’Connell); Austin v The King [2022] VSCA 240 (Priest JA); Austin v Dwyer [2023] VSC 76 (John Dixon J); Austin v Dwyer (Ruling) [2023] VCC 889 (Judge Tran) (‘Reasons’).
Ms Austin issued a proceeding in this Court against the three respondents to this appeal. It was remitted to the County Court. Her Honour Judge Tran, sitting in the unrepresented litigants list of the County Court, made orders concerning recusal and adjournment applications by Ms Austin and removed two respondents (Mr Dwyer, and ‘Victoria Police’, the named second respondent) from the proceeding. Her Honour then struck out Ms Austin’s statement of claim (filed in May 2022) against the remaining respondent, the State. She also made a self‑executing order dismissing the proceeding if Ms Austin failed to file and serve an amended writ and a draft amended statement of claim by a specified date. That has not been done, and, as things presently stand, Ms Austin’s claim is dismissed with an order that she pay the respondents’ costs.
Each of the orders made by the judge relating to the recusal, the adjournment, and the removal of the first and second respondents from the claim was appropriate.
The judge went to a great deal of trouble to analyse Ms Austin’s allegations, the causes of action alleged in the statement of claim and the defects in the pleaded case. Her Honour was correct in striking out the statement of claim. However, and somewhat reluctantly, we consider that she erred in making a self-executing order against a self‑represented litigant when this was the first challenge to the efficacy of Ms Austin’s pleaded case.
We explain our reasoning below.
Some background facts
Endeavouring to set out the chronology of the facts and litigation underpinning this claim would be both unproductive and render these reasons inordinately lengthy. It suffices to repeat two earlier statements of this Court in relation to Ms Austin’s ongoing litigation in this Court, the County Court, and the Magistrates’ Court.
In Austin v Dwyer (six separate applications for leave to appeal heard together by the Court of Appeal), Whelan and Kyrou JJA, in December 2019, provided the following succinct summary:
On 26 August 2016 a young man, Oscar Dobbs, obtained an interim intervention order against his former high school teacher, Fiona Austin. A final order was made on 28 September 2016.
Since those orders were made, there have been over 50 court hearings or court hearing dates in relation to the matter. Ms Austin has been charged with 14 offences, six of which allege breach of the orders. She spent almost a year on remand when her bail was revoked after alleged contraventions of the orders and a condition of her bail. She has appeared either in person or represented by lawyers on many occasions in the Magistrates’ Court. Appeals have been instituted in the County Court. Ms Austin has issued five judicial review proceedings in the Supreme Court. Four of those judicial review proceedings have been decided against her and are now the subject of applications for leave to appeal before this Court. The criminal proceeding against Ms Austin is fixed for trial in the County Court in May 2020.
The substantive complaints made by Mr Dobbs against Ms Austin which were the basis for the intervention orders have never been the subject of a concluded contested hearing and determination. Ms Austin asserts that this is what she has always sought but has never been able to obtain. She attributes this to lies and perjury by Mr Dobbs and the police; criminal conduct by the police in perverting the course of justice; judicial misconduct; and breaches of fiduciary duties, negligence and incompetence by lawyers who have acted for her. As will be seen, there are other potential explanations for what has occurred.[2]
[2][2019] VSCA 296, [1]–[3] (citations omitted).
Pausing here, with a little more detail — on 7 December 2016, Ms Austin was arrested and remained in custody until 22 November 2017.
Then, Beach and Sifris JJA in Austin v Dwyer in November 2021, noted:
On 13 December 2019, this Court, in Austin v Dwyer (‘Austin (CA)’), dismissed six applications for leave to appeal, brought by Ms Austin, against the dismissal of four originating motions filed by her in the Trial Division and costs orders made concerning two of those proceedings. In Austin (CA), the Court noted that there had at that stage been over 50 court hearings or court hearing dates in relation to the interim and final intervention orders made in 2016. Since Austin (CA), there have been a number of further court hearings and hearing dates in relation to these intervention orders.
On 6 December 2019, Ms Austin’s fifth judicial review proceeding came on for hearing before Forbes J. In that proceeding, Ms Austin sought judicial review of orders made in the Magistrates’ Court on 14 June 2019. By those orders, O’Callaghan M granted an interim intervention order against Ms Austin, on the application of Mr Dwyer (‘the police intervention order’). The police intervention order named Mr Dobbs as the person protected by the order. O’Callaghan M also refused to deal with a stay application that had been filed by Ms Austin, but not served on Mr Dobbs. While Ms Austin’s fifth originating motion appears to complain about all of the orders made in the Magistrates’ Court on 14 June 2019, in reasons delivered on 20 December 2019 (the ‘First Forbes J Reasons’), her Honour noted that the order revoking the ‘private intervention order’ did not form part of the fifth judicial review, but was appealed separately to the County Court, about which we will say more below.
On 10 February 2020, pursuant to the First Forbes J Reasons and reasons delivered on 6 February 2020 (the ‘Second Forbes J Reasons’), Forbes J made orders dismissing the fifth judicial review proceeding, and ordering Ms Austin to pay Mr Dwyer’s costs of the proceeding. On 11 February 2020, Ms Austin filed an application for leave to appeal from these orders.
On 6 November 2019, Ms Austin filed a sixth originating motion, seeking judicial review of an order made in the County Court on 25 October 2019 striking out an appeal from the orders made in the Magistrates’ Court on 14 June 2019. That judicial review proceeding has not yet been heard. As filed, it named Mr Dobbs and the County Court of Victoria as defendants. On 27 November 2019, Clayton JR, over the objection of Ms Austin, made an order joining Mr Dwyer as a third defendant. On 11 December 2019, Ms Austin filed a notice of appeal against this order. On 20 August 2021, Forbes J, at the request of Mr Dwyer, made an order pursuant to s 17B(2) of the Supreme Court Act 1986, reserving the sixth judicial review proceeding for the consideration of this Court (the ‘Third Forbes J Reasons’).
Thus, this Court presently has before it:
(a)Ms Austin’s application for leave to appeal (and, if leave is granted, the appeal) against the orders of Forbes J made on 10 February 2020; and
(b) Ms Austin’s sixth originating motion (including the appeal from Clayton JR against the joinder of Mr Dwyer as a third defendant to that proceeding).
At the heart of each of these proceedings is the correctness (or otherwise) of the orders made in the Magistrates’ Court on 14 June 2019. Before dealing with that matter, it is necessary to set out some of the background to this long running dispute. Before doing that, however, it is also necessary to describe the circumstances in which Ms Austin’s proceedings were heard in this Court.[3]
[3][2021] VSCA 306, [2]–[7] (citations omitted).
Since that decision, the following has occurred, relevant to this application.
In January to February 2022, Ms Austin was tried on seven charges in the County Court. She was convicted by a jury after a 16 day trial on the following charges:
(b) Charge 2 — that between 19 October 2014–8 December 2014 you used a carriage service to transmit series of communications to OD in such a way that reasonable persons would regard as being, in all the circumstances, harassing — guilty
(c) Charge 3 — that between 8 January 2015–28 April 2015 you stalked OD — guilty;
(d)Charge 5 — that between 20 January 2015–26 December 2015 you stalked CC — guilty;
(e) Charge 7 — that between 1 February 2016–17 October 2016 you stalked OD — guilty.[4]
[4]DPP (Vic) v Austin [2022] VCC 1571, [3] (Judge O’Connell).
On 14 September 2022, Ms Austin was sentenced by the trial judge, his Honour Judge O’Connell, to 18 months’ imprisonment, with a 12 month non-parole period. His Honour noted that Ms Austin had served 350 days by way of pre-sentence detention.
Ms Austin was incarcerated at the Dame Phyllis Frost Centre and was released from custody on 21 March 2023. Her appeal against her conviction and sentence remains extant.
This proceeding
Ms Austin’s statement of claim is dated 2 May 2022 and was initially issued in the Trial Division of this Court.
The claim is primarily targeted at Mr Dwyer, the first defendant to the claim. It alleges that he committed the torts of false imprisonment, misfeasance in public office and collateral abuse of process against Ms Austin.
‘Victoria Police’ is joined as the second defendant. The State is joined as the third defendant on the basis that the torts alleged against Mr Dwyer are ‘police torts’ within the meaning of the Victoria Police Act 2013 and that the State is liable for those torts.[5] We note that the County Court of Victoria was joined on this application as the fourth respondent. This makes no sense, and we have ignored the joinder.
[5]See ss 72–5 of the Victoria Police Act 2013.
On 12 August 2022, in the Trial Division, the State issued a summons seeking orders striking out the statement of claim and removing the first and second defendants as parties to the proceeding.
On 1 September 2022, John Dixon J transferred the proceeding from the Trial Division to the County Court.
The State’s strike out and removal application was subsequently listed for hearing in the County Court on 17 November 2022. Due to Ms Austin’s incarceration, the application was adjourned, in each instance by her Honour Judge Tran, on the papers to 1 December 2022 and then to 14 December 2022.
At the hearing on 14 December 2022, Judge Tran adjourned the hearing to 10 February 2023.
On 21 December 2022, Ms Austin wrote by email to the County Court seeking that Judge Tran recuse herself.
On 10 February 2023, Ms Austin (who was still in custody) appeared in person before Judge Tran, who acceded to her request that the State’s applications (and Ms Austin’s application for recusal) be adjourned until she was released from custody. The judge adjourned the hearing to 16 May 2023.
As mentioned, Ms Austin was released from custody on 21 March 2023.
On 27 April 2023, Ms Austin wrote to the judge’s associate by email seeking an adjournment of the 16 May 2023 hearing. The State opposed the application and the judge, via her associate, indicated that she was not prepared to adjourn the hearing unless proper material was provided addressing several matters identified by the judge.
On 3 May 2023, Ms Austin emailed the judge’s associate stating that she would not provide an affidavit and would ‘not be at the proceedings on 16 May 2023’. The basis for this is dealt with in greater detail later.
Written submissions were filed by both parties (Ms Austin’s on 5 May 2023) in relation to both the recusal application and the strike out and removal application.
The hearing of the State’s applications proceeded on 16 May 2023 (as the judge’s associate had indicated in an email on 9 May 2023 to the parties). Ms Austin did not attend, and the hearing proceeded in her absence. The judge dismissed Ms Austin’s recusal and adjournment applications in the course of the hearing. Her Honour reserved her decision in the strike out and removal application.
The reasons and orders of the judge
On 5 June 2023, Judge Tran granted the State’s strike out and removal application. The judge’s reasons run for 32 pages and are comprehensive. Her Honour’s orders were as follows:
1. The plaintiff’s application for the refusal of her Honour Judge Tran is dismissed.
2. The plaintiff’s application for adjournment of the hearing on 16 May 2023 is dismissed.
3. Pursuant to r 9.06(a) of the County Court Civil Procedure Rules 2018 (‘the Rules’), the first defendant and second defendant cease to be parties to the proceeding.
4. Pursuant to r 23.02 of the Rules, the plaintiff’s statement of claim filed 2 May 2022 is struck out.
5. By 4:00 pm on 12 July 2023, the plaintiff must:
a.file and serve, by email to [email protected] copied to the State of Victoria at [email protected], an Amended Writ naming the State of Victoria as the sole defendant; and
b.file and serve, by email to [email protected] copied to the State of Victoria at [email protected], a draft Amended Statement of Claim.
6.The proceeding is listed for a directions hearing on 24 July 2023 at 10:30 am (or so soon thereafter as the business of the Court permits).
7. If the plaintiff:
a.fails to comply with any of the sub-paragraphs of Order 5 by 4:00 pm on 12 July 2023; or
b. fails to appear at the directions hearing listed for 24 July 2023 at 10:30 am (or so soon thereafter as the business of the Court permits),
then the proceeding is immediately, and without the necessity for any further order, dismissed and the plaintiff must pay the defendants’ costs of the proceeding on a standard basis to be taxed in default of agreement.
8. Costs reserved.
9. Applications for extensions of time and other case management orders may be made by email to [email protected] copied to all parties.
The proposed grounds of appeal
In her application for leave to appeal, Ms Austin identified four separate errors constituting her proposed grounds[6] of appeal:
(1)the judge’s dismissal of her recusal application;
(2)the judge’s refusal of the adjournment of 16 May 2023 hearing;
(3)the striking out of the statement of claim; and
(4)the removal of Mr Dwyer and ‘Victoria Police’ as parties to the proceeding.
[6]For convenience, each proposed ground will be referred to as a ‘ground’ from here on.
During the hearing, the Court invited Ms Austin to consider adding a further ground which was not opposed by the State — namely, that the judge erred in the making of a self-executing order on 5 June 2023. This is the fifth ground.
Consideration
Ground 1 — Dismissal of the recusal application
Ms Austin’s written submissions (5 May 2023) replicated, in the main, the contents of an email she wrote to the County Court dated 6 December 2022. The basis for the recusal application was as follows:
(a)Judge Tran did not acknowledge her imprisonment until 29 November 2022 and this demonstrated ‘incompetence or a deliberate act designed to pervert the course of justice’;
(b)the existence of private communications between the County Court of Victoria and Mr Dwyer;
(c)other judges, including Priest JA and Judge O’Connell, prejudged her criminal proceedings;
(d)Judge O’Connell’s reasons for sentencing of 14 September 2022 contained ‘malicious, false and misleading statements that are not supported by the evidence’;
(e)Judge Tran had not made herself familiar with documents filed in the proceeding;
(f)emails from the Court and the State’s lawyers were sent to Ms Austin’s private email address whilst she was incarcerated;
(g)Judge Tran only communicated with the defendant’s lawyers; and given the ‘malicious and vindictive reasons’ of Judge O’Connell, being Judge Tran’s colleague, this gave rise to a perception that Judge Tran had prejudged the matter — a reasonable observer would consider that Judge Tran had not behaved independently of the defendants.
On 16 May 2023, Judge Tran dismissed the recusal application, stating:
I’m unable to see how the mere fact that my associate’s emailed correspondence to the email address that was provided to the court exhibits any apprehended bias on my part, particularly in a context where we’re at chambers that almost exclusively sits in civil divisions, and were not at that time familiar with the process of communicating with prisons.
In an application for disqualification on the basis of bias, two different types of bias may be alleged: actual or apprehended. Actual bias necessitates proof that a decision‑maker as a matter of fact approached the issues with a closed mind or had prejudged so that they were ‘so committed to a particular outcome that he or she will not alter that outcome, regardless of what evidence or arguments are presented’.[7]
[7]Pastor v Aegis Aged Care Staff Pty Ltd [No 3] [2023] WASCA 128, [38] (the Court) (‘Pastor’), citing Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17.
Apprehended bias requires consideration of whether, in all the circumstances, a fair‑minded lay observer with knowledge of the objective facts might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question.[8]
[8]Pastor [2023] WASCA 128, [38] (the Court), citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345 [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ); [2000] HCA 63 (‘Ebner’).
There is no evidence of actual bias. It is tolerably clear that Ms Austin’s application must be based on an allegation of apprehended bias.
The test for what is required to establish an apprehension of bias was set out by Kiefel CJ and Gageler J in CNY17 v Minister for Immigration and Border Protection as follows:
Establishment of an apprehension of bias on the part of the Authority then requires the taking of two essential steps: first, identification of the factor which it is postulated might have led the Authority to have decided the review otherwise than on an independent and impartial evaluation of the merits; and, second, articulation of how that factor might have led the Authority to have decided the review otherwise than on an independent and impartial evaluation of the merits. Taking those two steps is necessary to provide the foundation for the third and critical step in the application of the bias rule. That is the step of assessing whether the fair-minded lay observer might reasonably apprehend in the totality of the circumstances that the articulated departure might have occurred. In taking that third step, ‘it is the court’s view of the public’s view, not the court’s own view, which is determinative’.[9]
[9](2019) 268 CLR 76, 88 [21]; [2019] HCA 50 (citations omitted).
Most of the alleged ‘factors’ said to underpin Ms Austin’s application were scurrilous and unsubstantiated. The only allegation with a scintilla of substance (perhaps) was that addressed by the judge in her reasons: that of ‘private’ communications between the Court and the parties during the time Ms Austin was incarcerated.
There is, when analysed, nothing to this point. It may be accepted that Ms Austin did not receive emails from the Court for several months given her incarceration. However, these were forwarded to Ms Austin’s email address as provided by her to the Court — as she was required to do as part of her court filings. As the affidavit of Ms Sally Robertson, the managing solicitor of the Victorian Government Solicitor’s Office (which acts for the three respondents), of 13 December 2022 explained, all correspondence and accompanying documents from the respondents to the judge’s chambers were forwarded to Ms Austin’s email address — the one on the court record.
Similarly, the Court forwarded to Ms Austin’s email address correspondence relevant to the State’s application.
It was not due to any error of the Court that Ms Austin did not become aware of the correspondence concerning her proceeding until December 2022. The idea that the Court should have known of her incarceration because her criminal trial was also heard in the County Court is fanciful. Indeed, if anyone had a responsibility to notify the Court of the impracticality of email correspondence it was Ms Austin.
In late November 2022, Ms Robertson became aware that Ms Austin may be in custody and not be on notice of correspondence from the Court as to the pending hearing. Ms Robertson alerted the Court to this fact. On 29 November 2022, Judge Tran required the State to take all reasonable steps to serve on Ms Austin a copy of the material filed in support of its application, her order of that date, and correspondence with the Court.
Accordingly, in early December 2022, the State provided Ms Austin, by express registered post, with the hard copy of the relevant material. Thereafter, the judge was scrupulous to ensure that Ms Austin had an opportunity to participate in the scheduling of the State’s application and given the opportunity to join in it, as evidenced by her attendance at the February 2023 hearing.
The proposition advanced by Ms Austin that the judge, Mr Dwyer, and the State engaged in some form of private correspondence is without foundation — as are the allegations (not based in fact) of incompetence or prejudgment which are founded on suspicion alone.
There was nothing in the actions of the judge, or her chambers, that would lead one to conclude that she dealt with the case other than in an independent and impartial way.[10]
[10]See Ebner (2000) 205 CLR 337, 345 [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ); [2000] HCA 63; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, 445 [63] (Gummow ACJ, Hayne, Crennan and Bell JJ); [2011] HCA 48.
Ground 1 is without merit.
Ground 2 — Adjournment of 16 May 2023 hearing
In Minister for Immigration and Multicultural Affairs v Bhardwaj, Gummow and Gaudron JJ said:
Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. The opportunity to answer must be a reasonable opportunity. Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness.[11]
[11](2002) 209 CLR 597, 611 [40]; [2002] HCA 11 (citations omitted).
But also, given that this was a matter of practice and procedure, an appellate court should be slow to interfere with decisions to grant or refuse an adjournment unless injustice is demonstrated.[12] In addition, in determining whether there was an error in the making of such a decision the judge was required to take into account the objects specified by s 9(1) of the Civil Procedure Act 2010 (‘CPA’), namely:
[12]Sali v SPC Ltd (1993) 116 ALR 625, 628–9 (Brennan, Deane and McHugh JJ), 632 (Toohey and Gaudron JJ); Newton v Ellis [2012] NSWCA 106, [17]–[19] (Macfarlan JA, Beazley JA agreeing at [1], Whealy JA agreeing at [36]).
(a) the just determination of the civil proceeding;
(b) the public interest in the early settlement of disputes by agreement between parties;
(c) the efficient conduct of the business of the court;
(d) the efficient use of judicial and administrative resources;
(e) minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—
(i) the fair and just determination of the real issues in dispute; and
(ii) the preparation of the case for trial;
(f) the timely determination of the civil proceeding;
(g) dealing with a civil proceeding in a manner proportionate to—
(i) the complexity or importance of the issues in dispute; and
(ii) the amount in dispute.
In her reasons, the judge set out the procedural history leading up to her decision to refuse Ms Austin’s adjournment application.[13]
[13]Reasons, [5]–[17].
We have set out the details of the communications between the Court, the State and Ms Austin. On 5 December 2022, Ms Austin wrote to the County Court stating that she had not received the relevant documents until that day. She also:
(d) raised concerns this matter could not be dealt with via video link and should be dealt with by in-person appearance;
(e) submitted that this matter should not be conducted whilst she was imprisoned;
(f) stated that she would not be attending any ‘telecourt’ proceedings; and
(g) stated that the proceeding should be adjourned to at least June 2023.[14]
[14]Reasons, [8].
The hearing on 14 December 2022 was conducted with the aid of a Zoom facility. The judge was informed by a prison officer that Ms Austin was available, but that she refused to enter the room at which the video link was available. However, having considered Ms Austin’s letter, the judge adjourned the further hearing of the summons to 10 February 2023.
After the in person hearing on 10 February 2023, on 27 April 2023, Ms Austin emailed the Court:
As a consequence of other actions taken by Trent Dwyer to obstruct and pervert the justice process, I have had to commence additional legal action against him. A directions hearing is listed for that matter on 10 May 2023.
Applications for CI-22-04028 are currently listed to be heard on, 16 May 2023.
I cannot attend court twice in one month. It costs me around $300 to attend each day, which is almost half the money the Government provides me in a tortuous way to survive. Video links are not an option (this is not a soap opera, there were key witnesses performing for cameras at the criminal trial demonstrating just how bad that was, judicial officers treat prisoners/ex-prisoners/accused people as if they are not a part of the proceedings, and the safety threats to those prisoners/ex-prisoners who risk having their image/video captured while being on display have not been addressed by any Victorian court).
As a result, given the directions hearing on 10 May 2023, relates to matters that will be added to the case for CI-22-04028, I am requesting that the 16 May 2023 listing be moved to 16 June 2023 (or around that date.)[15]
[15]Reasons, [11].
On 3 May 2023, the judge’s associate replied by email, explaining that the judge was willing to consider any further application for an adjournment by Ms Austin only if it was supported by an affidavit filed and served no later than 8 May 2023, addressing:
• Why Ms Austin says it will cost her $300 to attend the hearing;
• Why she is unable to afford to attend the hearing on 16 May 2023;
• How adjourning to June 2023 will assist;
• Why she is unable to attend the hearing by zoom; and
• Any other facts relied upon in support of the application for an adjournment.[16]
Ms Austin was also warned that unless otherwise notified, an appearance was expected of all parties, and that failure to appear could result in adverse orders being made, including orders giving judgment.
[16]Reasons, [14].
No affidavit was received. Nor did Ms Austin appear at the hearing of 16 May 2023. Accordingly, on that day, the judge refused the adjournment application.
It is plain from the history above that Ms Austin was given a reasonable opportunity to present her case for an adjournment of the State’s application. She was also on notice that absent a cogent basis for the adjournment the State’s application would be dealt with on 16 May 2023.
In Aon Risk Services Australia Ltd v Australian National University, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:
[T]he rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants.[17]
[17](2009) 239 CLR 175, 211–12 [93]; [2009] HCA 27.
Recently, in AML (a pseudonym) v Longden Super Custodian Pty Ltd, this Court (Macaulay JA and J Forrest AJA) said:
It is not for the parties to litigation in this day and age, and with the pressures on courts to deal with cases efficiently and speedily, to dictate whether a case will or will not proceed on a particular day or time. That is the Court’s decision.[18]
[18][2023] VSCA 170, [49].
Those words ring particularly true in the present case. Ms Austin was invited by the Court to substantiate the allegations in her email of 27 April 2023. She did not do so and therefore the Court was entitled to proceed on the basis that she had not made out a case for the adjournment.
In any event, there was nothing in her assertions. Video hearings of interlocutory applications are now an established and satisfactory way of dealing with such an application in this state. Ms Austin’s claims that key witnesses ‘perform[] for cameras’, that judicial officers treat prisoners ‘as if they are not a part of the proceedings’ (noting that Ms Austin by the time of the email was not in custody), and that she would be exposed to safety risks as a result of being recorded on video link, are entirely without foundation.
The judge was lenient to Ms Austin. As mentioned, her Honour acceded to Ms Austin’s request to not participate in the December hearing by video link from prison. Later, when she was afforded the opportunity to attend in person in February (whilst in custody), the judge again was clement in delaying the hearing until her release from custody. In those circumstances, it was not surprising that the judge required her, after her release, to substantiate her grounds for seeking another adjournment. She failed to do so, and it was entirely appropriate for her Honour to refuse the application and proceed to determine the application by the respondents in her absence.
Ground 2 must fail.
Ground 3 — Striking out the statement of claim
For this Court to reconsider the judge’s ruling, Ms Austin must establish two things. First, a material error, in the House v The King sense, by the judge in the exercise of her discretion.[19] Second, as the decision was concerned with a matter of practice and procedure, she must also demonstrate that she will suffer substantial injustice if the appeal is refused.[20]
[19]House v The King (1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ).
[20]Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176–7 (Gibbs CJ, Aickin, Wilson and Brennan JJ); Billington v Sussan Corporation Australia Pty Ltd [2020] VSCA 12, [24] (Beach, Kaye JJA and Croucher AJA).
A long time ago, Isaacs and Rich JJ in Gould v The Mount Oxide Mines Ltd (in liq) said:
Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest. There is abundant authority for this, even if the matter were required to rest on authority only.[21]
[21](1916) 22 CLR 490, 517. See also Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, 286–7 (Mason CJ and Gaudron J).
In more recent times, in addition to these basic principles, courts have emphasised the role of the rules of court and relevant civil procedure legislation. In Uber Australia Pty Ltd v Andrianakis, this Court (Niall, Hargrave and Emerton JJA) adopted the detailed summary of the relevant principles set out by John Dixon J in Wheelahan v City of Casey [No 12]:
(a)Order 13 of the [Supreme Court (General Civil Procedure) Rules 2005] set out the relevant requirements of a sufficient pleading, while r 23.02 provides the grounds on which the sufficiency of a pleading may be impugned;
(b) the function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial;
(c) the cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence). The expression ‘material facts’ is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action;
(d) as a corollary, the pleading must be presented in an intelligible form — it must not be vague or ambiguous or inconsistent. Thus a pleading is ‘embarrassing’ within the meaning of r 23.02 when it places the opposite party in the position of not knowing what is alleged;
(e) the fact that a proceeding arises from a complex factual matrix does not detract from the pleading requirements. To the contrary, the requirements become more poignant;
(f) pleadings, when well-drawn, serve the overarching purpose of the Civil Procedure Act 2010 (Vic);
(g) a pleading which contains unnecessary or irrelevant allegations may be embarrassing — for example, if it contains a body of material by way of background factual matrix which does not lead to the making out of any defined cause of action (or defence), particularly if the offending paragraphs tend to obfuscate the issues to be determined;
(h) it is not sufficient to simply plead a conclusion from unstated facts. In this instance, the pleading is embarrassing;
(i) every pleading must contain in a summary form a statement of all material facts upon which the party relies, but not the evidence by which the facts are to be proved (r 13.02(1)(a));
(j) the effect of any document or purport of any conversation, if material, must be pleaded as briefly as possible, and the precise words of the document or the conversation must not be pleaded unless the words are themselves material (r 13.03);
(k) particulars are not intended to fill gaps in a deficient pleading. Rather, they are intended to meet a separate requirement — namely, to fill in the picture of the plaintiff’s cause of action (or defendant’s defence) with information sufficiently detailed to put the other party on guard as to the case that must be met. An object and function of particulars is to limit the generality of a pleading and thereby limit and define the issues to be tried;
(l) a pleading should not be so prolix that the opposite party is unable to ascertain with precision the causes of action and the material facts that are alleged against it;
(m) extensive cross-referencing of facts in a pleading may render parts of the pleading unintelligible;
(n) in an application under r 23.02, the court will only look at the pleading itself and the documents referred to in the pleading;
(o) the power to strike out a pleading is discretionary. As a rule, the power will be exercised only when there is some substantial objection to the pleading complained of or some real embarrassment is shown; and
(p) if the objectionable part of the pleading is so intertwined with the rest of the pleading so as to make separation difficult, the appropriate course is to strike out the whole of the pleading.[22]
[22](2020) 61 VR 580, 599–600 [50]; [2020] VSCA 186, quoting [2013] VSC 316, [25] (citations omitted).
The statement of claim posited three claims against the respondents: false imprisonment, collateral abuse of process, and misfeasance in public office.
After setting out the functions and requirements of pleadings and noting the ‘special care’ to be taken in relation to self-represented litigants, the judge determined to strike out the statement of claim:
Having regard to my findings below in relation to specific causes of action and paragraphs of the Statement of Claim, I have concluded that the flaws in Ms Austin’s Statement of Claim extend beyond immaterial deficiencies. The Statement of Claim fails to perform the three functions of a pleading that I have identified above. It obscures rather than clarifies the issues in dispute; and is likely to significantly prolong the time and expense required to resolve the proceeding. Taken as a whole, it is scandalous, frivolous and vexatious and may prejudice, embarrass and delay the fair trial of the proceeding.
It is not possible to separate and sever the offending parts of the Statement of Claim. It should be struck out in its entirety.[23]
[23]Reasons, [34]–[35].
Those three functions so identified were:
(a)informing the other party of the case it must meet at trial;
(b)informing the judge of which issues must be determined in the case; and
(c)‘explaining the precise basis for a claim, so that if a proceeding lacks an essential condition to establish liability, it can be brought to an end expeditiously’.[24]
[24]Reasons, [22]–[23].
Her Honour then explained her decision, commencing with the false imprisonment claim. She noted that the statement of claim contained details extending well beyond those necessary to establish the essential elements of the tort. She observed that insofar as Ms Austin advanced a claim for false imprisonment for the period after she was remanded in custody by the Magistrates’ Court, ‘no action for false imprisonment can lie for the actions of Detective Dwyer and other police officers for the period after the interposition of an order of a court’. Accordingly, her Honour held that the statement of claim should be struck out in its entirety, but that Ms Austin should be permitted to replead a claim for false imprisonment for the period from her arrest on 7 December 2016 until an order was made remanding her in custody by the Magistrates’ Court.[25]
[25]Reasons, [36]–[42].
On the claim for collateral abuse of process, her Honour noted that Ms Austin failed to plead, satisfactorily, facts capable of giving rise to an inference that Mr Dwyer and other police officers had held improper purposes when they took various interlocutory steps in the criminal proceeding against Ms Austin. She further observed that Ms Austin admitted in her statement of claim that the intent of the applications made by Mr Dwyer and other police officers was to obtain the very relief contemplated by those processes — which meant that on Ms Austin’s case as pleaded, a claim of abuse of process could not succeed.[26]
[26]Reasons, [55]–[62].
Turning to the claim for misfeasance in public office, her Honour stated that actual malice was necessary to establish the cause of action, and that Ms Austin’s statement of claim failed to plead primary facts from which such malice could be discerned. Where specific primary facts were alleged, they were consistent with an innocent state of mind. Accordingly, that claim was also struck out.[27]
[27]Reasons, [63]–[70].
The judge analysed Ms Austin’s statement of claim in considerable detail, producing a table addressing the paragraphs in the statement of claim which she considered to be ‘most scandalous, frivolous or vexatious’, which is set out below:
Paragraph
Finding
5
States that the tort of malicious prosecution is not included in this Statement of Claim because the appeal has not yet taken place. The claim should either be made or not made. If the tort is not yet complete, it cannot be made.
False imprisonment
10
Alleges the remand application is ‘infected with lies, misstatements of truth, unfairness and intimation from the beginning to the end’. No details of the alleged lies or misstatements are provided nor any primary facts to support these allegations. Also alleges a failure to consider bail criteria (presumably by a Magistrate) which is both irrelevant to the claims made in this proceeding and unsupported by detail or primary facts.
13
Alleges that Detective Dwyer used Ms Austin’s imprisonment to ‘imply to judicial officers that I am a dangerous person and incontestably guilty of criminal acts’. No details of the alleged use are provided nor are any primary facts alleged to support the assertion of Detective Dwyer’s purpose. The relevance of these allegations to the claim for false imprisonment is not apparent.
41
Alleges ‘malicious persecution’, unsupported by details or allegations of primary fact. The relevance of this allegation to the claim for false imprisonment is not apparent.
46
Alleges that a decision was ‘unlawful and/or arbitrary’ without any details or supportive primary facts. The allegation is not relevant to the claim for false imprisonment.
Collateral abuse of process
54
Alleges that the sole purpose of the arrest warrant was to ‘humiliate, harass and intimidate me’. No primary facts are pleaded.
75
Alleges that the prosecution worked ‘in collusion’ with her lawyers and two magistrates. Not supported by any allegations of primary fact or particulars.
77
An allegation is made that a statement was ‘perjured’. Also appears to allege that a Judge was influenced by Detective Dwyer’s ‘backgrounding’. No details are provided of the alleged perjury or backgrounding and no primary facts are pleaded which would establish the perjury or backgrounding. The relevance to pleaded claims is not clear.
Misfeasance in Public Office — False data recorded in LEAP database
79–85
Very vague and confusing. An allegation is made in paragraph 79 that between 18 August 2017 and 18 September 2017 Detective Trent Dwyer recorded false data in the LEAP database, however, it is not stated what that false data was nor are primary facts alleged supporting the allegation that it was false. Possibly the false data is the sentence ‘Orders that a chronology be produced by the respondent (Victoria Police)’ but this is insufficiently clear.
82
Alleges that an invalid PSIO is on Ms Austin’s record which ‘has been used, and will forever be used, as a justification to inflict abuse and harm of every, and any kind on me’. No details or primary facts of these allegations are provided.
Misfeasance in Public Office — Destruction of Evidence/Property
88
Alleges ‘destructive use’ of Ms Austin’s laptop, but does not provide details of the nature of the alleged damage to the laptop nor how it amounts to an invalid or unauthorised act.
Misfeasance in Public Office — Obtaining and Distributing Documents
95–109
Very vague and confusing. The acts constituting the alleged obtaining and distributing of documents are not identified. Possibly it is the sending of the documents referred to in paragraph 109, but it is not clear why sending these documents is unlawful and unauthorised nor how their sending caused harm.
96
Alleges that Detective Dwyer ‘misrepresented himself’ without providing any details or pleading primary facts or providing particulars.
102
Alleges ‘false allegations made about me’ and a ‘viciously nasty and malicious prosecution’. No details or primary facts are provided.
104–107
Makes allegations concerning Judges and Court staff (including an allegation, unsupported by any particulars or primary facts, of private conversations between Detective Dwyer and a Judge, registrars and associates) which have no apparent relevance to the claims made in the proceeding.
Misfeasance in Public Office — Perjury
110
An allegation is made that Detective Dwyer committed perjury on numerous occasions, without any details of the alleged perjury, pleading of primary facts or provision of particulars.
111
Alleges Detective Dwyer spoke and wrote lies without any details of the alleged lie, pleading of primary facts or provision of particulars.
112
Alleges Detective Dwyer told lies to Courts without any details of the alleged lies, pleading of primary facts or provision of particulars.
113
States that alleged lies are not an exhaustive list. Any allegation of a lie must be distinctly alleged, supported by the pleading of primary facts and sufficiently particularised.
114
Alleges Detective Trent Dwyer ‘and his legal representatives’ told lies to judicial officers without any details of the alleged lies, pleading of primary facts or provision of particulars.
118–122
Alleges Detective Dwyer told lies while giving evidence. Witness immunity applies.
Misfeasance in Public Office — Influence of Judicial Officers
124
Alleges Detective Dwyer used his position and contacts within the justice system to influence and change the outcome and progress of proceedings. No details are provided, no pleading of primary facts or provision of particulars.
127
Alleges ‘backgrounding’ between Detective Dwyer, his lawyers and judicial officers, associates and other court employees. There are no details of this alleged backgrounding, nor pleading of primary facts nor provision of particulars.
128
Alleges Detective Dwyer, his lawyers, and the judicial officers ‘who supported them’ made the justice process unjustifiably oppressive for her and brought the administration of justice into disrepute. No details are provided, no pleading of primary facts nor provision of particulars.
130
Alleges ‘malevolent and strategic backgrounding’. No details are provided, no pleading of primary facts nor provision of particulars.
131–144
No primary facts are pleaded in these paragraphs which would support the allegations made in paragraphs 124–130.
Misfeasance in Public Office — Application for replacement PSIO, 6 June 2019
149
Alleges use of ‘invalid orders’ to ‘discredit me, to generate hatred and abuse towards me, and to justify the creation of additional orders negatively impacting on the defence of criminal charges’. It is not stated why the orders were invalid or who, when or how the alleged invalid orders were used in this way, there is no pleading of primary facts nor provision of particulars.
152
Alleges ‘lies and misinformation’ by Detective Dwyer without details of the alleged lies and misinformation, pleading of primary facts or provision of particulars.
154
Alleges that Detective Dwyer’s PSIO application ‘contained false and misleading information’ without details of the alleged false and misleading information, pleading of primary facts of provision of particulars.
155
Alleges Detective Dwyer made false and misleading statements in an application without details of the alleged false and misleading statements, pleading of primary facts of provision of particulars.
156
Describes a Court order as ‘pernicious and prejudicial’.
Misfeasance in Public Office — Inciting others to Mistreat and Harm me
164
Alleges that she was abused and harassed by a security manager, without pleading primary facts of abuse and harassment or provision of particulars.
170
Alleges that the conduct of a criminal trial was unfair and the verdict unsafe and unreasonable.
171
Alleges, without providing any details of the acts relied upon (other than the broadbrush in ‘committing the various torts set out above’), that Detective Dwyer acted in a ‘malicious, intentional, reckless, cruel, oppressive and contumelious manner, in disregard of my interests and legal and human rights, over a prolonged period of time’.
The statement of claim was prolix and much of it, as the judge found, was objectionable; importantly, it did not contain the necessary information required for the Court and the defendants to understand what it was that was being alleged. It made many vague and scandalous allegations and was in some respects self-defeating. When viewed as a whole it could not stand for the reasons advanced by the judge.
This was a decision of practice and procedure (see above at [47] and [61]). No injustice nor legal error has been shown in relation to the order striking out the statement of claim. However, for reasons we will explain in a moment, the position in respect of the self-executing order as to the repleading of the claim (ground 5) is different.
In follows that ground 3 must fail.
Ground 4 — Removal of first and second defendants as parties
Sections 72, 74 and 75 of the Victoria Police Act 2013 relevantly provide:
72 What is a police tort?
(1)For the purposes of this Act, a police tort is a tort committed by a police officer or protective services officer in the performance or purported performance of the officer's duties. …
74 Liability of the State for police torts
(1)Subject to this section, the State is liable for a police tort.
(2)… the State is not liable for a police tort if the State establishes on a police tort claim that the conduct giving rise to the police tort was serious and wilful misconduct by the police officer or protective services officer who committed the police tort.
(3)If a police officer or protective services officer commits a police tort for which the State is liable, the officer—
(a)is not liable to any person for the police tort; and
(b)is not liable to indemnify, or to pay any contribution to, the State in respect of the liability incurred by the State. …
75 How can police tort claims be made?
(1)Except as otherwise provided by this Division, if a person wishes to make a police tort claim, the person must make it against the State and not against the police officer or protective services officer who allegedly committed the police tort.
(2)A person who makes a police tort claim … against the State may seek to have the police officer or protective services officer who allegedly committed the police tort joined to the proceeding only if the State pleads in its defence to the claim that—
(a)the State would not be liable for the alleged tort, if proven, because of section 74(2); or
(b)the alleged tort, if proven, would not be a police tort.
In removing Mr Dwyer and ‘Victoria Police’ as defendants, the judge reasoned as follows:
The claims against Detective Dwyer and Victoria Police are police tort claims. In her Statement of Claim, Ms Austin claims damages for tort arising from acts alleged to be committed by Detective Dwyer (and others). It is apparent from the very nature of the torts relied upon by Ms Austin (false imprisonment, collateral abuse of process and misfeasance in public office) that the acts alleged to be committed by Detective Dwyer were done in the performance or purported performance of his duties as a police officer.
Accordingly:
(a) Sub-Section 75(1) prohibits Ms Austin from making the claim against Detective Dwyer;
(b) Sub-Section 75(2) states that Detective Dwyer may only be joined if the State of Victoria pleads certain matters in its defence (one of which is that the State is not liable by reason of ss74(2)). As the State of Victoria has not yet filed a defence, the requirements of ss74(2) cannot have been met and Detective Dwyer cannot be joined to the proceeding;
(c) unless the State of Victoria establishes the matters in ss74(2), namely that the conduct giving rise to the police tort was serious and wilful misconduct by Detective Dwyer or another police officer:
(i)the State of Victoria will be liable under ss74(1) for any police tort to have been committed by Detective Dwyer; and
(ii) Detective Dwyer will not be liable for any such police tort (ss74(3)); and
(d) the words ‘if the State establishes’ in ss74(2) cannot be ignored or treated as superfluous. Section 74 works hand-in-glove with ss75(2). It does not suffice for a plaintiff to establish that a police officer has committed serious and wilful misconduct. Sub-section 74(2) and ss74(3) will only apply to a tort committed by Detective Dwyer if the State of Victoria pleads and proves that the conduct giving rise to the tort was serious and wilful misconduct by Detective Dwyer.
In relation to Victoria Police, even if it were a body corporate capable of being sued, its joinder adds nothing so long as the State of Victoria is made liable for police torts by the Police Act.[28]
[28]Reasons, [83]–[85].
We agree with her Honour’s reasoning. It does not appear to be in issue, as the judge found, that Mr Dwyer’s alleged conduct falls within the definition of a police tort. Whether Mr Dwyer may be joined as a defendant is dependent on the terms of the statute which sets out the manner in which police torts are litigated in this state. Section 75(1) by its terms prohibits the claim Ms Austin wishes to bring against Mr Dwyer personally.
Only if the State pleads the matters set out in s 74(2), can Mr Dwyer be joined as a party to the claim. It has not done so and her Honour’s reasoning on this score cannot be faulted.
Ground 4 fails.
Ground 5 — The making of a self-executing order
It is apparent that the judge was generally sensitive to Ms Austin’s needs as a self‑represented litigant.[29] However, we consider that her Honour erred in making a self-executing order to dismiss Ms Austin’s proceeding unless she filed and served within a prescribed time an amended writ and statement of claim.
[29]See, eg, Reasons, [21].
The judge explained her decision to make a self-executing order on the basis that Ms Austin had ‘demonstrated a concerning disregard for Court processes and an unwillingness to accept the authority of the Court’, and that the CPA made it clear that ‘the Court may impose strict discipline on its proceedings in order to further the overarching purpose’.[30] Both of those matters are correct but, as we will discuss in a moment, there are other valid considerations. The usual course after an initial successful attack on the pleading would be to simply allow Ms Austin a period of time in which to replead her claim; and if she failed to do so in time (or did so inadequately), then to consider the next course of action.
[30]Reasons, [88]–[90], citing National Builders Group IP Holdings Pty Ltd v ACN 092 675 164 Pty Ltd (in liq) and Richard Trygve Rohrt [2015] VSCA 260, [40]–[43] (Maxwell P and Kaye JA) (‘National Builders’).
Before this Court, counsel for the State supported the judge’s self-executing order by reference to the ‘history’ of the case, being one of ‘direct and express decisions by the applicant not to comply with court requirements’. Further, it was submitted, Ms Austin was given an opportunity to replead, to apply for further time, and to apply to set aside or vary the self-executing order if she explained her non-appearance to the Court. It was also argued that the judge had to balance various interests under the CPA, which, counsel submitted, ‘imposes a different standard now on the way that discipline is required of the parties’.
It can be readily accepted that the provisions of the CPA, which we have set out at [47] above, informed her Honour’s decision, particularly given the history of this case and the applicant’s conduct. However, it is important not to lose sight of a critical part of those provisions — namely the interests of justice. In Northern Health v Kuipers, this Court (Kyrou and McLeish JJA) said:
[While] time, costs and limited judicial resources are relevant considerations in the determination of whether to allow certain interlocutory processes … ‘the primary question still remains: what do the interests of justice dictate?’; Aon reminds courts that ‘the prism through which these interests are viewed is wider than just that of the moving party’.[31]
[31][2015] VSCA 172, [33], quoting Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd’s, London [2011] VSC 370, [9] (J Forrest J). See also Billington v Sussan Corporation Australia Pty Ltd [2020] VSCA 12, [25] (Beach, Kaye JJA and Croucher AJA); Baptcare Ltd v Ingpen (as Executor of the Estate of Margaret Beatrix Colborne) [2022] VSCA 250, [39] (Macaulay JA and J Forrest AJA).
We consider that there are two matters which tell against her Honour’s order.
First, whether it was appropriate to make such an order in the circumstances. Second, whether the time allowed was adequate given the nature of the claims and the fact that Ms Austin was self-represented.
As to the first point, it can be accepted that the statement of claim was in an unacceptable form. However, it is singular that the first of Ms Austin’s claims is of false imprisonment. It relates to both her initial arrest on 7 December 2016 and hearing in the Magistrates’ Court as well as her subsequent incarceration on the order of the magistrate on the same day, which lasted until 22 November 2017.
In actions concerning the liberty of the person, it is important that litigants be afforded due opportunity to present their case. As Gageler J observed in Northern Australian Aboriginal Justice Agency Ltd v Northern Territory:
[T]he protection of personal liberty l[ies] at the core of our inherited constitutional tradition, which includes the inheritance of the common law. Liberty is ‘the most elementary and important’ of those basic common law rights, which ‘traditionally, and therefore historically, are judged by that independent judiciary which is the bulwark of freedom’.[32]
[32](2015) 256 CLR 569, 610 [94]; [2015] HCA 41 (citations omitted).
The tort of false imprisonment has long been recognised as a fundamental protection of that right.[33] Indeed, whether that claim (which commenced with Ms Austin’s arrest) may be maintained after the order of the Magistrates’ Court does not, it seems to us, to be as easy of resolution as the judge considered.
[33]See, eg, Ruddock v Taylor (2005) 222 CLR 612, 632 [70] (McHugh J); [2005] HCA 48; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514, 569 [155] (Hayne and Bell JJ); [2015] HCA 1; Minister for Home Affairs v Benbrika (2021) 272 CLR 68, 132 [138] (Gordon J); [2021] HCA 4.
Moreover, in our joint experience of litigation in this state, the making of a self‑executing order on the first attempt at pleading out a complex claim (indeed on a simple claim) is draconian — particularly where the plaintiff is a self-represented litigant. Usually, the criticisms of the opposing party and the observations of the presiding judicial officer will assist in the reformulation of the claim without the sword of Damocles hanging over the litigant’s head.
In Rozenblit v Vainer, in overturning a decision to stay a proceeding for non-compliance with costs orders, Kiefel CJ and Bell J observed:
It has been recognised that the manner of the conduct of proceedings might provide grounds for a stay. Any assessment of such conduct will require consideration to be given to the matters identified as relevant to achieving the purpose of the CPA. It is by reference to such facts that the purpose of the CPA may assume particular importance in some cases. But in every case where a stay which may effectively terminate a proceeding is sought, consideration must be given to the general principles and to whether the nature and effect of the conduct in question provides strong grounds for the making of the order.[34]
[34](2018) 262 CLR 478, 488 [25]; [2018] HCA 23.
Those observations are relevant to this case, where the judge’s self-executing order would terminate the proceeding unless Ms Austin repleaded her claim in the time allowed. The ‘nature and effect of the conduct in question’ — that conduct being her failure to plead properly her claim — needed to provide ‘strong grounds’ for the making of the self-executing order. We do not think that it did so.
The facts of this case are to be contrasted to the facts in National Builders Group IP Holdings Pty Ltd v ACN 092 675 164 Pty Ltd (in liq) and Richard Trygve Rohrt (‘National Builders’),[35] relied upon by the judge. In that case, this Court (Maxwell P and Kaye JA) held that an order made striking out the applicant’s defence was proportionate. The applicant failed to comply with two self-executing orders in respect of discovery. The first self-executing order had been made by consent, and the second self-executing order provided over five months’ time to make discovery. The second order was later extended by agreement by another week. It was only when the applicant had failed still to make discovery, without explanation, that the defence was struck out.
[35][2015] VSCA 260.
Her Honour, in this case, relied upon the following passage from National Builders:
Through the provisions of the CPA, Parliament has made it ‘emphatically clear’ that the Court may impose strict discipline on its proceedings in order to further the overarching purpose.[36]
[36]Reasons, [89], citing National Builders [2015] VSCA 260, [40]–[43] (Maxwell P and Kaye JA).
However, the Court was responding to a submission by the applicant that
on the proper construction of [s 56(2)(j) of the CPA], the power to strike out a claim or defence was exercisable only where there was ‘a real risk’ that the defaulting conduct ‘amounted to an abuse of process which would render any further proceedings unsatisfactory and prevent the Court from doing justice[’][37]
and that
the power to dismiss a claim or defence for non-compliance with discovery obligations was an interference with the ‘fundamental common law right’ to a fair trial and that there was no indication, or no sufficient indication, in the legislation that Parliament had intended such an interference.[38]
[37]National Builders [2015] VSCA 260, [34] (Maxwell P and Kaye JA) (emphasis in original).
[38]National Builders [2015] VSCA 260, [39] (Maxwell P and Kaye JA).
In response to those submissions, their Honours said this:
There are several answers to this contention. First, the right to a hearing in civil proceedings has never been unqualified. As counsel properly conceded, the right to bring, or to defend, civil proceedings has always been governed by strict rules of procedure — established both at common law and by Rules of Court. The right to a hearing is conditional on compliance with those rules.
Secondly, the powers conferred by s 56(2) are but an extension of powers already available to the Court to deal with non-compliance with procedural obligations. The change is one of degree, not of substance. Thirdly, and most importantly, Parliament’s intention to impose strict discipline on the conduct of civil proceedings was made emphatically clear by the enactment of the CPA itself, and by the clear statements which it contains about the obligations of practitioners and parties. In short, the legislature could not have expressed more clearly its intention to improve the cost-efficiency of civil litigation and — to that end — to authorise sanctions for non-compliance, including the sanction of denying a party a hearing.[39]
[39]National Builders [2015] VSCA 260, [39]–[41] (emphasis added) (citations omitted).
The Court’s statement emphasised the Court’s power to strike out, even where the defaulting conduct falls sort of being an abuse of process. Equally as important, it is apparent that the circumstances of that case were egregious and readily distinguishable from this case. Indeed, over 16 months had elapsed from the first date on which discovery had been ordered to be made by, and the ultimate striking out of the applicant’s defence.[40]
[40]National Builders [2015] VSCA 260, [16]–[28].
Notwithstanding the protracted history of the State’s application and Ms Austin’s conduct, a self-executing order should have been a last rather than initial resort. The judge erred in making an order that dismissed a claim within an initial pleading on a self-executing basis.
Second, as to the time allowed to replead her case before it was struck out, Ms Austin was given five weeks from the making of the order (from 5 June 2023 to 12 July 2023) in which to plead out a fresh claim. In circumstances where the entirety of Ms Austin’s statement of claim had been struck out, and where she did not have the benefit of legal representation, we consider that she should have been afforded more time to reformulate her case — particularly if the consequence of not doing so was the subject of a self‑executing order to dismiss her proceeding.
In Roberts v Harkness, this Court (Maxwell P, Beach and Niall JJA) said:
[T]he Court will first have to assess the capability of the unrepresented person to formulate, and communicate, the case which he/she wishes to present. The assumptions as to capability on which the Court proceeds where a party is represented do not, of course, apply.
The assessment of capability will typically be based on any written documentation which the litigant has filed and, where there is an oral hearing, on the quality of the litigant’s verbal communication with the Court. Very often, the judicial officer will be able to assess relatively quickly whether, and to what extent, the litigant will need assistance, either from the Court or from a third party, in order for the Court to be able to understand the litigant’s case.
A critical fair hearing question for the judicial officer is whether there is, or may be, an arguable legal point underlying the unrepresented litigant’s arguments but which he/she has not been able to articulate. In those circumstances, in our view, the duty to afford a fair hearing may require the judicial officer to seek to elicit and elucidate the legal point, through exchanges with the litigant.[41]
[41](2018) 57 VR 334, 356–7 [54]–[56]; [2018] VSCA 215 (emphasis added).
The judge assessed Ms Austin’s capability as follows:
It appears from Ms Austin’s correspondence with the Court, and oral submissions on 10 February 2023, that she is literate, educated and articulate. She appears capable of understanding the requirements of the Rules (even if not necessarily willing to comply with them). Although some leeway may be granted in view of her lack of legal qualifications, she does not appear to require significant assistance to understand the basic rules of pleadings or to draft a statement of claim which complies with those Rules.[42]
[42]Reasons, [32].
Although we agree with her Honour’s assessment of Ms Austin as literate and educated, in the hearing before us it appeared that she at times had difficulty formulating coherent submissions in order to effectively advance a contention.
Whatever be the true position, it seems to us that for a self-represented litigant a period of five weeks in which to reformulate her complex claim was too stringent.
We accept that the strength of this point (and indeed the first point) is diminished by Ms Austin’s determination, as she told us, not to alter a word of her document. However, it may be that this was simply a reaction to the terms of the original order and these reasons, when combined with the judge’s observations, will give her time to reflect on that position.
More importantly, and notwithstanding that the order dismissing the claim was a matter of practice, we think that on both points the order produced an injustice and constituted a House v The King error.[43]
[43](1936) 55 CLR 499; [1936] HCA 40.
It follows that ground 5 is made out. Orders 5 and 7 should be set aside. The appropriate order is to allow Ms Austin until 1 December 2023 to replead her statement of claim. If she fails to do so or does so inadequately then it will be open to the State to seek dismissal of her claim.
There are three other matters we should mention in conclusion, and which must be considered by Ms Austin. First, her unfounded and scurrilous allegations against multiple judicial officers and others must cease if she is to get her claim to court. Second, any repleading of her case against the State must be based on fact and properly drawn inference, and relevant to the pleaded case alone. Third, in the course of the hearing before us Ms Austin made numerous unjustified and outrageous allegations against counsel for the State and his instructing solicitor. If she is to be permitted to appear on her own behalf, she must desist from this type of behaviour, which in a court proceeding involving a represented party would not be tolerated.[44]
[44]See, eg, R v Slaveski [2011] VSC 643, [25]–[63], [153]–[154], [156]–[157] (Whelan J), where a self‑represented litigant was excluded from court and found guilty of contempt; decision upheld in Slaveski v The Queen (on the Application of the Prothonotary of the Supreme Court of Victoria) [2012] VSCA 48.
Conclusion
For the reasons expressed above, orders to the following effect will be made:
(1)Leave to appeal is refused on proposed grounds 1, 2, 3 and 4.
(2)Leave will be granted to amend Ms Austin’s application for leave to appeal dated 30 June 2023 to add a fifth proposed ground of appeal, that Judge Tran erred in making a self-executing order on 5 June 2023.
(3)Leave to appeal is allowed on proposed ground 5.
(4)The appeal is allowed on ground 5.
(5)Orders 5 and 7 of her Honour Judge Tran’s orders of 5 June 2023 are set aside.
(6)In place of those orders, Ms Austin is by 1 December 2023 to file an amended writ and amended statement of claim against the State of Victoria.
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SCHEDULE OF PARTIES
FIONA AUSTIN Applicant and TRENT DWYER First respondent VICTORIA POLICE Second respondent STATE OF VICTORIA Third respondent
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