JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2024
DATE OF RULING:	26 July 2024
CASE MAY BE CITED AS:	Austin v Dwyer
MEDIUM NEUTRAL CITATION:	[2024] VSC 435

---

ADMINISTRATIVE LAW – Judicial review – Application for leave to appeal pursuant to s 109(5) of the Magistrates’ Court Act 1989 (Vic) – No exceptional circumstances – Whether interim orders may be considered final orders within the meaning of s 109 of the Magistrates’ Court Act 1989 (Vic) – Whether there is utility in appealing revoked orders – Sections 61(1) and s 44(2)(b) of the Personal Safety Intervention Orders Act 2010 (Vic).

CIVIL PROCEDURE – Whether the appeal should be dismissed pursuant to r 58.10(9) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Inarguable appeal – Insufficient identification of questions of law.

---

APPEARANCES:	Counsel	Solicitors
The Applicant in person
For the Respondent	Mr C Fitzgerald of counsel	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

Introduction

Summary

Material

Background

History of this Proceeding

Should leave be given to appeal?

Applicable Principles
Have exceptional circumstances been demonstrated?
Applicant’s submissions
Respondent’s submissions
Analysis – exceptional circumstances

Will the grant of leave cause the respondent material prejudice?
Applicant’s submissions
Respondent’s submissions
Analysis – prejudice

Should the Court exercise its discretion to grant leave?

Should the appeal be dismissed pursuant to r 58.10(9)?

Applicant’s submissions
Respondent’s submissions

Are the interim PSIOs ‘final orders’ within the meaning of s 109(1) of the Magistrates’ Court Act?
Applicant’s submissions
Respondent’s submissions
Analysis – are the interim PSIOs final orders?

Was the applicant ‘on notice’ of the police varied interim PSIO or the police final PSIO, and was notice required?
Applicant’s submissions
Respondent’s submissions
Analysis – was the applicant on notice, and was she required to be?

Did the Magistrate have the power to make the PSIO on 29 November 2022?
Applicant’s submissions
Respondent’s submissions
Analysis – Did the Magistrate have the power to make the PSIO on 29 November 2022?

Is there any utility in appealing a revoked order?
Applicant’s submissions
Respondent’s submissions
Analysis – is there any utility in appealing the revoked order?

Why the appeal is inarguable and does not sufficiently identify a question of law
Ground 1, Questions of Law 1 and 2
Grounds 2 and 3, Questions of Law 3, 4, 5, 6, 7, 12, 13
Grounds 4 and 5, Question 8 – 11

Conclusion

HER HONOUR:

Introduction

Fiona Austin (‘applicant’), a former teacher, seeks leave to appeal Personal Safety Intervention Orders (‘PSIOs’) made against her in the Magistrates’ Court of Victoria. By her amended Notice of Appeal filed on 15 July 2023, she seeks to have interim and final PSIOs made in three Magistrates’ Court proceedings declared invalid.[1] The PSIOs were made against the applicant and related to a former student. He is not a party…

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 [2024] VSC 435
Case: [2024] VSC 435
Decision Date: 26 July 2024

CaseChat Overview and Summary

The applicant, Austin, filed an application for leave to appeal a decision of Dwyer in the Magistrates' Court of Victoria. The decision in question pertained to an application for a Personal Safety Intervention Order (PSIO) under the Personal Safety Intervention Orders Act 2010 (Vic), which was ultimately dismissed. The applicant sought to appeal the decision on the grounds that the interim orders made by the Magistrate should be considered final orders within the meaning of s 109 of the Magistrates’ Court Act 1989 (Vic). This was part of a broader challenge to the exceptional circumstances required for leave to appeal as outlined in s 109(5) of the Magistrates’ Court Act 1989 (Vic).

The primary legal issue before the court was whether the interim orders, which had been revoked, could be considered final orders for the purposes of an appeal. A secondary issue was whether there was utility in appealing orders that had been revoked, particularly in light of s 61(1) and s 44(2)(b) of the Personal Safety Intervention Orders Act 2010 (Vic). The court also needed to determine whether the appeal should be dismissed under r 58.10(9) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) due to the insufficiency of the identification of questions of law and the inarguable nature of the appeal.

The court held that there were no exceptional circumstances that warranted leave to appeal, as the applicant had not demonstrated that the appeal would have a real chance of success or that it was in the interests of justice to grant leave. The court found that interim orders, once revoked, could not be considered final orders for the purposes of an appeal. Additionally, the court held that there was no utility in appealing orders that had already been revoked, particularly given the statutory provisions that were in play. The court concluded that the appeal was inarguable and did not sufficiently identify questions of law, and therefore dismissed the application for leave to appeal.

Orders