Austin v Dwyer - [2023] VSC 76

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S ECI 2023 00165

FIONA AUSTIN	Proposed Plaintiff
-v-
TRENT DWYER & ORS (as set out in the attached schedule)	Proposed Defendants

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	23 February 2023
CASE MAY BE CITED AS:	Austin v Dwyer & Ors
MEDIUM NEUTRAL CITATION:	[2023] VSC 76

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PRACTICE AND PROCEDURE – Refusal by Prothonotary to accept documents for filing on basis that Proposed Motion for Judicial Review would constitute abuse of process – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 27.06, 28A.04(5); Personal Safety Intervention Orders Act 2010 (Vic) s 40(1).

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APPEARANCES:	Counsel	Solicitors
For the Proposed Plaintiff	No appearance (the application being referred on the papers by the Prothonotary)
For the Proposed Defendants

HIS HONOUR:

Introduction

By facsimile received by the court registry on 12 January 2023, the proposed plaintiff, Ms Fiona Austin, sought to file:

(a) a Proposed Originating Motion for Judicial Review dated 10 January 2023;

(b) an unsworn affidavit in support dated 10 January 2023;

(c) a summons dated 10 January 2023;

(d) forms 4A and 4B dated 10 January 2023; along with

(e) a cover letter and hearing date application form dated 10 January 2023.

The purported review application alleged a decision taken against Ms Austin by a Magistrate to grant an interim personal safety intervention order (PSIO) on 27 October 2022. Ms Austin sought to challenge the PSIO. She maintains that the order was invalid and seeks a declaration to that effect.

The grounds of review, set out in an unsworn affidavit, include that she was never informed of the application or the proceedings, or that any order was granted. She asserted, without any reference to any documents from the alleged proceeding (which it may be inferred she does not have access to), that the criteria to be met before an interim intervention order can be granted had not been met and the perjury of the proposed defendants ‘was not taken into account’. Ms Austin proposes to assert if the affidavit is sworn that she has not been served or otherwise informed of this order. It only came to her attention on 7 December 2022 via a database at the Dame Phyllis Frost Centre, where she is incarcerated.

On 13 January 2023, the Prothonotary refused to seal and file the proposed documents pursuant to r 27.06(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) for the following reasons:

(a) The order sought to be reviewed has not been provided. No assessment can be made as to the terms, parties and timing of the decision subject to review;

(b) There is a risk that the purpose of this proposed process is to use the courts to further harass the proposed second defendant, which use would amount to an abuse of process;

(c) There is a risk that the proposed process will cause further…

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 [2023] VSC 76
Case: [2023] VSC 76
Decision Date: 23 February 2023

CaseChat Overview and Summary

The case of Austin v Dwyer was heard in the Supreme Court of Victoria. The dispute arose when the Prothonotary, a court official responsible for receiving and processing documents, refused to accept certain documents for filing. The applicant, Austin, intended to file a motion for judicial review against a decision made under the Personal Safety Intervention Orders Act 2010 (Vic). The respondent, Dwyer, argued that the proposed motion would constitute an abuse of process.

The legal issues before the court included whether the Prothonotary had the authority to refuse the documents on the basis that they would constitute an abuse of process, and whether the applicant's intended motion for judicial review was an appropriate means of challenging the decision. The court also had to consider the relevant rules of court and statutory provisions that applied to the case.

The court found that the Prothonotary did not have the authority to refuse the documents on the basis that they would constitute an abuse of process. The court held that the decision to refuse the documents was not in accordance with the relevant rules of court and statutory provisions. The court further found that the applicant's intended motion for judicial review was an appropriate means of challenging the decision, and that the refusal to accept the documents for filing was therefore an error of law. The court ordered that the documents be accepted for filing and that the applicant's motion for judicial review be heard.

Orders