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:

1. 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.

1. 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.

1. 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.

1. 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 interest considerations that are relevant to the exercise of discretion as to costs in her favour in this particular case. 

   [2]Plaintiff, ‘Plaintiff’s Submission on Costs’, Submission in Austin v Dwyer & Anor [2019] VSC 837, S ECI 2019 03477, 17 January 2020, [17] – [19].

1. The first defendant made the submission that costs are at the discretion of the Court in accordance with s 24 of the Supreme Court Act 1986.  The ordinary rule was that costs follow the outcome of the hearing.  It was submitted that the rationale for this rule was that a ‘successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party’.[3]  The purpose of such a general rule is to compensate the successful party for the expense incurred in defending the proceeding not to punish the unsuccessful party. This is so even where impecuniosity might impede recovery of the costs.[4]  The first defendant submitted that there were no particular circumstances that would warrant a departure from the application of this usual rule.

   [3]Northern Territory v Sangare [2019] 372 ALR 117 [25] citing Smeaton Hanscomb & Co Ltd v Sasson I Setty, Son & Co (No 2) [1953] 1 WLR 1481; [1953] 2 All ER 1588 at 1590. See also Harold v Smith (1860) 5 H & N 381 at 385; [157 ER 1229 at 1231]; Oshlack at [66] – [67], see also at [35], [134].

   [4]Latoudis v Casey (1990) 170 CLR 534 [567].

1. The submissions of both parties accept that the Court has a broad discretion as to costs embodied in s 24 of the Supreme Court Act 1986. They differed as to the elements relevant to the exercise of that discretion and as to the appropriate orders. The plaintiff submitted that she was entitled to the legal costs of her review proceeding notwithstanding the fact that she was unsuccessful or, alternatively, that there should be no order as to costs. The first defendant submitted that the costs should follow the event and it be awarded its costs of the proceeding including the costs of the summary judgment application that it made. It submitted that the operation of rule 63.20 of the Supreme Court (General Civil Procedure) Rules 2015 supported this outcome. 

Section 111 of the PSIO Act

1. The plaintiff’s submission to me that s 111 applies to review proceedings in the Supreme Court is an argument that had already been considered by Ginnane J in Austin v Dobbs (No 2).[5]Ginnane J’s conclusion that s 111 of the PSIO Act had no application to judicial review proceedings brought in the Supreme Court was itself appealed by Ms Austin. In a judgment dated 13 December 2019, the Court of Appeal said this:

In relation to the issue concerning s 111 of the PSIO Act, in our opinion, Ginnane J’s conclusion in relation to the application of that provision was correct. Ms Austin’s originating motions seeking judicial review were not proceedings ‘for a personal safety intervention order’. They were separate proceedings seeking judicial review, in the sense previously explained, of proceedings in the Magistrates’ Court which had been of the kind referred to in s 111 of the PSIO Act. Ms Austin’s judicial review proceedings were distinct from, and fundamentally different to, the proceedings to which s 111 of the PSIO Act applies.[6]

[5][2019] VSC 588.

[6]Austin v Dobbs [2019] VSCA 296, [121].

1. Ms Austin’s submissions make no reference to this decision which was delivered shortly before she filed her submissions. I must proceed on the basis that s 111 of the PSIO Act has no application in relation to the costs of this proceeding.

1. Ms Austin complains that the judicial review proceeding failed to undertake a merits review.  This is so.  The Court has no appellate authority to do so.  It simply has a supervisory jurisdiction.   The proceeding commenced by her cannot and could never be the merits review that she sought.  In this judicial review, as in her four previous judicial reviews, Ms Austin has asserted that a contested hearing and determination on the merits of the PSIO applications is what she seeks.  However, as explained at the hearing of this  review,[7] a judicial review cannot be a vehicle to conduct a merits review nor can it have regard to the broad chronology of the underlying Magistrates’ Court proceedings and adjudicate generally on their progress. An order that she pay costs is not for the purpose of  penalising Ms Austin because the Court could not and so did not undertake a merits review. 

   [7]Transcript of Proceedings, Austin v Dwyer & Anor [2019] VSC 837, Supreme Court, S ECI 2019 03477, Justice Forbes, 6 December 2019, 12 [17]-[27]; 139[3]-[10].

1. I repeat the recent conclusions of the Court of Appeal:

Ms Austin maintains that all she has ever sought is a contested hearing in relation to Mr Dobbs’ allegations against her which were the foundation for the interim intervention order made without notice to her in August 2016.  She has a trial date in the County Court where she is charged with stalking and harassing Mr Dobbs (and his mother) between October 2014 and August 2016; that is, prior to the first intervention order.  A contested hearing of Mr Dobbs’ allegations concerning the conduct which led to the first intervention order will then be held.  This is what Ms Austin says she has been seeking all along.  The summary charges concerning the alleged contraventions of the intervention order and the bail condition will be dealt with after her trial.[8]

[8][2019] VSCA 296 [141].

1. Although Ms Austin’s submissions as to costs also set out a number of public interest considerations raised by the circumstances of her case, I cannot determine costs based upon those aspects of the submissions. The submissions set out a number of statistics relating to PSIOs none of which have been put before the Court by way of evidence. The submission was made that, on the basis of those statistics, that there is a public interest in determining what constitutes an objective risk to safety when decisions are made under s 35 of the PSIO Act. Any such public interest considerations cannot be a consideration for costs on judicial review which looks at legal or procedural error in a specific decision. There has been no finding of error in the application of s 35 by the magistrate.

1. The submissions of the Plaintiff also refer to the conduct of the underlying Magistrates’ Court proceedings more generally as exhibiting conduct of the first defendant ( among others) as conduct justifying an adverse costs order. The conduct with which I am principally concerned is that in this review proceeding as those are the costs I am deciding. I am not deciding costs in relation to any of the three existing Magistrates’ Court proceedings.

1. For the above reasons, I consider that it is appropriate to exercise my discretion so that the first defendant is entitled to recover the costs of defending this proceeding from the plaintiff.  In this case, the summary judgment application was issued but the hearing and determination of that summary judgment application was listed with the substantive application not as a preliminary matter.  The first defendant filed its application for summary judgment with the affidavit and submissions in support, in accordance with the orders of the Court dated 4 September 2019 save that those submissions were filed on 22 October rather than 16 October 2019. 

1. In the circumstances, the costs of the summary judgment application, upon which no order was made, are included as costs of the proceeding.  I will therefore order that the plaintiff pay the first defendant’s costs, including any reserved costs and any non-common costs of the summary judgment application filed pursuant to the order of Judicial Registrar Clayton dated 4 September 2019. Those costs are to be paid on a standard basis and are to be assessed in default of agreement.