JUDGE:	Richards JA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 March 2025
DATE OF JUDGMENT:	25 June 2025
CASE MAY BE CITED AS:	Austin v Dwyer
MEDIUM NEUTRAL CITATION:	[2025] VSC 369

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PRACTICE AND PROCEDURE — Appeal from order of associate judge refusing leave to appeal under s 109 of the Magistrates’ Court Act 1989 (Vic) — Whether associate judge erred in finding that appellant’s failure to institute appeal within 30 days was not due to exceptional circumstances — Whether associate judge erred in finding no arguable case — Held failure to institute appeal within time due to exceptional circumstances — Held no arguable case on appeal — Appeal dismissed — Magistrates’ Court Act 1989 (Vic) s 109 — Personal Safety Intervention Orders Act 2010 (Vic) ss 1, 4, pt 3 — Supreme Court Act 1986 (Vic) s 17(3) — Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 58.10(9), 77.06.1–9 — Austin v Dwyer [2024] VSC 435.

PRACTICE AND PROCEDURE — Application for leave to appeal from costs order made by associate judge — Whether associate judge erred in exercising discretion to order appellant to pay respondent’s costs of the proceeding — Leave to appeal refused — Magistrates’ Court Act 1989 (Vic) s 109 — Supreme Court Act 1986 (Vic) s 17A(2) — Personal Safety Intervention Orders Act 2010 (Vic) ss 109, 111, 126(1).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Respondent	Mr C Fitzgerald	Victorian Government Solicitor

HER HONOUR:

Since 26 August 2016, Fiona Austin has been the respondent to a series of personal safety intervention orders made under the Personal Safety Intervention Orders Act 2010 (Vic) (PSIO Act). The most recent of these, and the only one still in operation, is a final order made on 29 November 2022 for a duration of five years (2022 final PSIO).

In this proceeding, Ms Austin seeks to appeal all of those orders under s 109 of the Magistrates’ Court Act 1989 (Vic). Because the proceeding was commenced more than 30 days after the making of each of the orders, the appeal is deemed to be an application for leave to appeal.[1] Leave may only be granted if the Court is of the opinion that the failure to institute the appeal within time was due to exceptional circumstances.[2]
[1]Magistrates’ Court Act 1989 (Vic), s 109(2), (4).
[2]Magistrates’ Court Act, s 109(5)(a).

The respondent to this proceeding is Trent Dwyer, a detective senior constable of Victoria Police, who has been the applicant for the intervention orders made against Ms Austin since June 2019. The earlier intervention orders were made on the application of a young man who I will refer to as the affected person. Mr Dwyer was also the informant in a number of criminal charges against Ms…

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 Dwyer

Details

AGLC: Austin v Dwyer [2025] VSC 369
Case: [2025] VSC 369
Decision Date: 25 June 2025

CaseChat Overview and Summary

In Austin v Dwyer, the appellant sought leave to appeal against a decision of an associate judge who had refused to allow an appeal against an order made under the Personal Safety Intervention Orders Act 2010 (Vic). The appellant argued that the associate judge had erred in finding that the appellant's failure to institute the appeal within the required 30-day period was not due to exceptional circumstances, and in finding that there was no arguable case on appeal. The appellant also challenged the associate judge's decision to order the appellant to pay the respondent's costs of the proceeding.

The court considered whether the associate judge had erred in exercising his discretion to refuse leave to appeal, and whether there was an arguable case on appeal. The court found that the appellant's failure to institute the appeal within the required time was due to exceptional circumstances, however the court held that there was no arguable case on appeal as the orders made by the magistrate were not unlawful or beyond the magistrate's jurisdiction. The court also found that the associate judge had not erred in ordering the appellant to pay the respondent's costs of the proceeding.

The court dismissed the appeal and affirmed the decision of the associate judge. The court found that the appellant had failed to establish that there was an arguable case on appeal, and that the associate judge had exercised his discretion appropriately in ordering the appellant to pay the respondent's costs. The court held that the appeal was without merit and dismissed it accordingly.

Orders