| 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 |
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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 |
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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.
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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 An interim intervention order was originally made on 26 August 2016.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 11th 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…
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- AGLC
- Austin v Dwyer [2019] VSC 837
- Case
- [2019] VSC 837
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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