Austin v Dwyer (Costs Ruling) - [2020] VSC 18

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:	On the papers
DATE OF JUDGMENT:	6 February 2020
CASE MAY BE CITED AS:	Austin v Dwyer & Anor (Costs Ruling)
MEDIUM NEUTRAL CITATION:	[2020] VSC 18

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JUDICIAL REVIEW – Personal safety intervention orders – Costs – Unsuccessful judicial review application – Judicial review proceedings not proceedings for personal safety intervention orders – Personal Safety Intervention Orders Act 2010, s 111.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First Defendant	Mr D P McCredden	Victorian Government Solicitor’s Office

HER HONOUR:

Ms Austin unsuccessfully sought judicial review of orders of a magistrate made on 14 June 2019. I delivered reasons for dismissing the review on 20 December 2019.[1] On that day, neither party was in a position to make submissions as to the appropriate costs orders and so I ordered the filing and service of written submissions. The first defendant filed written submissions dated 10 January 2020. The plaintiff filed written submissions dated 17 January 2020.
[1][2019] VSC 837.

The judicial review was one of a number of reviews undertaken by Ms Austin in relation to the conduct of proceedings in the Magistrates’ Court, where she was made subject of the interim and then final Personal Safety Intervention Orders (PSIO). Those orders were made at the request of one of Ms Austin’s former students, Mr Dobbs, and later Detective Sergeant Dwyer of the Victoria Police. The relevant chronology for this judicial review and the context of the broader chronology of the litigation is set out in my judgment. I will not repeat it here. In summary, this judicial review firstly alleged error in the magistrate’s refusal to deal with a stay application made by Ms Austin on the basis that it had not been served on the other party and secondly, an error by the magistrate in granting a PSIO on application by Detective Sergeant Dwyer in substitution of that already granted to Mr Dobbs.

The plaintiff submitted, firstly, that the purpose of the judicial review initiated by her was to ‘ensure a fair trial’ of the ‘criminal proceeding’ and that she was entitled to a hearing on the merit of a defence to the PSIO orders made against her. In that respect, she argued that at the hearing on 6 December 2019 the Court failed to conduct a merits review of the intervention order application and that she should not be penalised for the Court’s failure to do so.

The plaintiff further submitted that s 111 of the Personal Safety Intervention Orders Act 2010 (‘PSIO Act’) applies to review proceedings in the Supreme Court and is not confined to applications in the Children’s or the Magistrates’ Court.[2] Finally, the plaintiff submitted that there are public…

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 (Costs Ruling)

Details

AGLC: Austin v Dwyer (Costs Ruling) [2020] VSC 18
Case: [2020] VSC 18
Decision Date: 6 February 2020

CaseChat Overview and Summary

The case of Austin v Dwyer involved a judicial review of a decision made under the Personal Safety Intervention Orders Act 2010. The applicant, Austin, sought to challenge the issuance of a personal safety intervention order against him. The matter was heard and determined by the Supreme Court of New South Wales. The primary dispute centred on the costs incurred during the judicial review proceedings, with Austin arguing that he was entitled to an order for costs against Dwyer, the respondent.

The central legal issue before the court was whether the judicial review proceedings were to be considered as proceedings for personal safety intervention orders under the Personal Safety Intervention Orders Act 2010. The court needed to determine whether such proceedings were subject to the provisions of section 111 of the Act, which pertains to the allocation of costs in cases involving personal safety intervention orders. If the judicial review proceedings were not considered as such, then the usual rules for costs in judicial review cases would apply.

In delivering its ruling, the court examined the statutory language and legislative intent behind section 111 of the Personal Safety Intervention Orders Act 2010. The court held that judicial review proceedings were distinct from the original proceedings for the issuance of personal safety intervention orders. As such, section 111 did not apply to the costs in the judicial review case. Consequently, the court applied the general principles governing costs in judicial review cases, ultimately determining that Austin was not entitled to an order for costs against Dwyer. The court's decision was grounded in the statutory interpretation that the specific provisions for costs in personal safety intervention orders did not extend to the judicial review process.

The court concluded by dismissing Austin's application for an order for costs against Dwyer, affirming that the general rules for costs in judicial review cases were applicable. The court's ruling clarified the scope of section 111 of the Personal Safety Intervention Orders Act 2010 and its application to costs in judicial review proceedings.

Orders