Austin v Dwyer
[2023] VSC 76
•23 February 2023
| 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 harm to the proposed second defendant in circumstances where the plaintiff was convicted and imprisoned, in part, for stalking the second defendant;
(d) There are no discernible grounds for review and therefore no reasonable prospects of success. For example, if this is an interim personal safety intervention order, then the fact that Ms Austin was not present, a ground she advances, is not on its own a ground of review.[1] Likewise, her allegations that there was perjury at the hearing, based on her suspicion that the applicant for the order committed perjury previously, is doomed to fail because Ms Austin has never sighted the decision she seeks to impugn or the record of proceedings. She cannot have any basis for this contention.
[1]See s 37 of the Personal Safety Intervention Order Act 2010 (Vic).
Rule 27.06(1) provides the Prothonotary may refuse to seal an originating process without the direction of the court where the Prothonotary considers that the form or contents of the document show that, were the document to be sealed, the proceeding so commenced would be irregular or an abuse of the process of the court.
On 18 January 2023, Ms Austin responded to the Prothonotary’s rejection of her process. She explained that she did not have a copy of the alleged intervention order because she was never informed of it, which is the very review ground upon which she seeks to rely. She submitted that seeking to uphold her legal and human rights is not an abuse of process, nor harassment or intimidation. Ms Austin maintained, wrongly, that is it a statutory requirement that respondents be given an opportunity to appear and present their case before any intervention order, including an interim one, is granted. She denied that no arguable bases for review of the impugned decision are identified.
Ms Austin also referred to an appeal of her criminal conviction and sentence (the status of which is unknown to the court, save that she appears to say she will only be commencing the appeal proceedings once she has left custody in March 2023). She submitted that the Prothonotary’s basis for rejecting her originating motion predetermined the outcome of that appeal (in that it assumed she was indeed guilty of the charges against her in respect of proposed defendant).
For these reasons, she sought a review of the Prothonotary’s decision by a judge. Under r 27.06(3), the court may direct the Prothonotary to seal an originating process or accept a document for filing.
For the reasons that follow, the Prothonotary was correct to refuse to seal and file the proposed documents for the first and fourth reasons that he gave.
Background
In 2022, a jury found the plaintiff, Ms Austin, guilty of three charges of stalking and of one charge of using a carriage service to harass.[2] She was sentenced to a total effective sentence of 18 months’ imprisonment with a non-parole period of 12 months. With pre-sentence detention served, Ms Austin has been eligible for parole since 28 September 2022 and her sentence will expire on 29 March 2023. That is why she is incarcerated at the Dame Phyllis Frost Centre.
[2]DPP v Austin [2022] VCC 1571.
Ms Austin’s documents do not identify the applicant for the intervention order but Trent Dwyer, Oscar Dobbs and The Magistrates Court of Victoria are named as the prospective defendants to the proposed motion for judicial review. Detective Sergeant Trent Dwyer of Victoria Police was the police informant in respect of the matters of which Ms Austin was convicted in 2022. Oscar Dobbs is one of the two victims of the conduct that led to Ms Austin’s conviction. The second victim was Mr Dobbs’ mother.
While the Prothonotary noted that Ms Austin has been involved in a number of prior proceedings in the Magistrates’ Court, County Court, Supreme Court Trial Division, and the Court of Appeal arising from issues relating to and involving Mr Dobbs and Mr Dwyer, the present review is confined to the circumstances of the Prothonotary’s refusal to seal and issue the originating motion.
Legal principles
The task of the Prothonotary under r 27.06(1) and of the Court under rr 27.06(3) and 28A.04(5) (in respect of documents filed by RedCrest) is administrative, to ensure compliance with court rules and processes. In the first instance, the inquiry is whether the process is regular, that is in conformity with the requirements of the Rules. To the extent that it might be said the process is an abuse, no adjudication on the merits of any issue raised or determination of any preliminary dispute is required.[3] If there is an arguable basis for permitting filing it should be allowed.[4] ‘Grave doubts’ about a plaintiff’s claim will not be sufficient, rather it must be obvious without argument that the claim is untenable.[5]
[3]Louise Goode v All Common Equity Housing Limited Governing Board Directors (Supreme Court of Victoria, J Forrest J, 19 October 2022), [8].
[4]LG (a Pseudonym) v the Public Advocate [2021] VSC 583, [24].
[5]Little v State of Victoria (Supreme Court of Victoria, Gillard J, 17 June 1997).
The decision whether to direct the Prothonotary to seal originating process concerns only the document as presently formulated and not some amended form of the originating motion.[6]
[6]Saric v Vukasovic [2021] VSC 60, [11].
In determining whether a proposed proceeding is hopeless or its prospects of success are fanciful, the impact of the proposed proceeding on the proposed defendants can be a relevant factor. Hopeless and vexatious litigation is a burden upon the persons against whom such litigation is brought. The Court, which is a public resource, is required to be available for the hearing and determination of cases of real substance. In rare and exceptional cases, the court will protect the administration of justice generally by refusing to receive documents that would constitute an abuse of process.[7]
[7]Civil Procedure Act 2010 (Vic) ss 7-9; Lawlor v Langenheim [2022] VSC 591, [15]; Lawlor v Perez [2022] VSC 590, [15]-[16], [32].
Although such issues came within the contemplation of the Prothonotary and I do not suggest that his consideration of them was erroneous, it is unnecessary to look further than the question of whether the proposed originating motion is irregular.
Rule 56.01(5.1) provides that there shall be included as exhibits to the affidavit filed in support of the originating motion, a copy of the order or decision in respect of which relief is sought and a copy of the reasons given for such decision, or their absence as exhibits shall be accounted for in the affidavit. Rule 56.01(6) provides that the court shall not grant any relief or remedy in the nature of certiorari unless a copy of the order, verified by affidavit, is produced, or its non-production is accounted for to the satisfaction of the court.
Section 19 of the Personal Safety Intervention Orders Act 2010 (Vic) (PSIO Act) provides that as soon as practicable after an application for a personal safety intervention order (defined to include both interim and final) is made, the appropriate registrar for the court must serve the application on the respondent.
Section 37 of the PSIO Act provides, however, that an interim order may be made whether or not the respondent has been served with a copy of the application and whether or not the respondent is present when the interim order is made.
Section 40(1) of the PSIO Act provides that if a court makes an interim PSIO, the appropriate registrar of the court must give the respondent a written explanation of the order, in the prescribed form, that explains its purpose, terms and effect, and other matters about the order. Section 40(4)(b) provides that if the respondent is not before the court for the hearing, then the written explanation must be served on the respondent.
Analysis
Taking Ms Austin’s documents at their word, the court can infer that she believes she is the respondent to an interim PSIO requested by Trent Dwyer and/or Oscar Dobbs and granted on 27 October 2022. However, her belief is not sufficient to constitute compliance with Rule 56.01(5.1). Further, her belief raises questions of whether there has been compliance with the provisions of the PSIO Act that I have noted. The only fact noted is that there appears to be some record of an order apparent to her from inspection of some database at the Dame Phyllis Frost Centre which does not reveal a proceeding number.
A proposed motion for judicial review of a decision cannot commence without a copy of that decision or an account of its absence. No order can be granted for relief by the court unless that absence is accounted for to the court’s satisfaction. The court currently has no confirmation that an order was actually made, or the exact form of the order, or the affected person(s) named within it. Given that the registrar of the Magistrates’ Court of Victoria is obliged to serve a written explanation of any interim order on Ms Austin, it is not an acceptable explanation for the omission of the order or any evidence of its existence for Ms Austin to say she does not have it and has only learned of it by hearsay from a database. Once Ms Austin is notified of the decision she seeks to review and is able to identify it, then her application will be ripe. At this stage, it appears premature.
The Prothonotary was entitled to conclude that the proposed originating motion was irregular.
It is unnecessary to address the Prothonotary’s further concerns relating to the risk Ms Austin is using the judicial process to continue to harass the second proposed defendant and the risk the proposed process will continue to harm the proposed second defendant.
Conclusion
On review, I reject Ms Austin’s application for the court to direct the Prothonotary to seal the originating motion filed on 12 January 2023.
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SCHEDULE OF PARTIES
S ECI 2023 00165
BETWEEN:
| Fiona Austin | Proposed Plaintiff |
| -v- | |
| Trent Dwyer | Proposed First Defendant |
| Oscar Dobbs | Proposed Second Defendant |
| Magistrates Court of Victoria | Proposed Third Defendant |
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