Austin v Dwyer - [2019] VSC 837

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 03477

FIONA AUSTIN	Plaintiff
v
DETECTIVE TRENT DWYER	First Defendant
MAGISTRATES’ COURT OF VICTORIA	Second Defendant

---

JUDGE:	Forbes J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2019
DATE OF JUDGMENT:	20 December 2019
CASE MAY BE CITED AS:	Austin v Dwyer & Anor
MEDIUM NEUTRAL CITATION:	[2019] VSC 837

---

JUDICIAL REVIEW – Appeal from orders of the Magistrates’ Court – Application for Summary Judgment – Whether Magistrate failed to properly consider stay application – Whether Magistrate erred in applying balance of probabilities test in decision to grant intervention order – Whether plaintiff denied procedural fairness – Grounds of review not made out and no error of law demonstrated – Personal Safety Intervention Orders Act2010 (Vic), ss 15(e), 35, 93, 94, Magistrates’ Court (Personal Safety Intervention Orders) Rules 2011 (Vic) r 6.01, 8.09, 14.02, Charter of Human Rights and Responsibilities Act2006 (Vic), ss 4, 8, 24, 39, Civil Procedure Act 2010 (Vic), s 62.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self-represented
For the First Defendant	Mr D.P. McCredden	Victorian Government Solicitors

HER HONOUR:

This judicial review arises from orders made in the Magistrates’ Court on 14 June 2019. Personal safety intervention orders have been taken out against Ms Austin by a former student, Mr Dobbs. They are based on alleged behaviour going back to 2014. An interim intervention order was originally made on 26 August 2016. It was made final on 26 September 2016 and extended on 11 September 2017 (collectively the ‘private intervention orders’). Ms Austin contests the factual basis upon which the private intervention orders are based saying that there are not and have never been grounds for making the orders.

In June 2019 the police applied to revoke the private intervention order and to substitute Detective Sergeant Dwyer as the applicant for intervention. The substitution was substantively identical to the private intervention orders but with Detective Sergeant Dwyer as the informant pursuant to s 15(e) of the Personal Safety Intervention Orders Act2010 (Vic) (the ‘PSIO Act 2010’).

The existence of the private intervention orders have led to a number of appeals and judicial review proceedings. Detail of the various proceedings is outlined below. In part the substitution was based upon the ongoing service of documents for appeal related hearings on Mr Dobbs’ wife. The police described this as a continuation of the harassment. The substitution would have the effect of the police being able to act on his behalf in future court hearings. This was the application listed for hearing on 14 June 2019. The application was served on the Ms Austin. She opposed it.

Ms Austin also emailed the Court on 11^th June 2019, addressed to three different court email addresses attaching a summons and lengthy affidavit in support seeking that the private intervention order proceeding be stayed. [1] Her email identified that she would be in Court…

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 [2019] VSC 837
Case: [2019] VSC 837
Decision Date: 20 December 2019

CaseChat Overview and Summary

The case of Austin v Dwyer involved a challenge to orders made by the Magistrates’ Court of Victoria, which had issued personal safety intervention orders against the plaintiff, Mr Austin, under the Personal Safety Intervention Orders Act 2010 (Vic). The defendant, Ms Dwyer, sought these orders on the basis of alleged harassment by Mr Austin. The plaintiff appealed the magistrate’s decision to the Supreme Court, arguing that the magistrate had failed to properly consider a stay application, misapplied the balance of probabilities test in granting the intervention order, and that he was denied procedural fairness.

The central legal issues before the court were whether the magistrate erred in failing to properly consider the stay application and whether the magistrate misapplied the balance of probabilities test when deciding to grant the intervention order. Additionally, the plaintiff contended that he was denied procedural fairness during the proceedings. The court needed to determine whether the grounds of judicial review were satisfied and if any legal errors were made by the magistrate in reaching the decision.

The Supreme Court found that the grounds of review were not substantiated. It concluded that the magistrate had adequately considered the stay application and that the application of the balance of probabilities test was appropriate. The court further held that procedural fairness was not denied to the plaintiff, as he had been given the opportunity to present his case and respond to the allegations. As a result, the appeal was dismissed, and the intervention orders against Mr Austin were upheld.

Orders