Austin v Dwyer (Ruling No. 2)

[2024] VCC 1221

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-22-04028

FIONA AUSTIN	Plaintiff
v
TRENT DWYER	First Defendant
THE STATE OF VICTORIA	Second Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	6 August 2024
DATE OF RULING:	16 August 2024
CASE MAY BE CITED AS:	Austin v Dwyer and Anor (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1221

REASONS FOR RULING
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Subject:DAMAGES CLAIM

Catchwords:              Application to disqualify judge - actual bias – apprehended bias – where applicant self-represented – where matter previously struck out for non-appearance

Cases Cited:Austin v Trent Dwyer & Ors [2023] VSCA 227; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Charisteas v Charisteas (2021) 273 CLR 289; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; South Western Sydney Area Health Service v Edmonds 4 DDCR 421

Ruling:Application denied

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms F Austin, in person
For the Defendants	Mr C Fitzgerald	Victorian Government Solicitor’s Office

HIS HONOUR:

1This case has a long history. Most of that does not need to be repeated[1]. For brevity, I would refer to the Court of Appeal decision, Austin v Trent Dwyer & Ors [2023] VSCA 227 handed down 19 September 2023 which sets out the most relevant history and context.

[1]See footnote 1 in the decision Austin v Trent Dwyer & Ors [2023] VSCA 227 which relevantly outlines the various court proceedings the parties have been engaged in since at least 2018

2Briefly, that decision concerned whether the trial Judge, her Honour Judge Tran, erred in:

i.failing to recuse herself;

ii.refusing a request for adjournment;

iii.striking out Ms Austin’s statement of claim;

iv.removing defendants from Ms Austin’s statement of claim; and

v.making self-executing order to replead on pain of dismissal.

Only in respect of the last ground was the appeal upheld.

3The Court of Appeal  remitted the matter to this Court.

4Meanwhile the plaintiff filed a special leave application to the High Court concerning the Court of Appeal decision.

5As the plaintiff is a self-represented litigant, the matter was returned to her Honour Judge Tran, who is the judge in charge of the Self-Represented Litigants List at the County Court in the Common Law Division. Almost immediately after the matter was remitted to this Court, the plaintiff filed an application that her Honour Judge Tran disqualify herself for reasons of actual and apprehended bias.

6Judge Tran, without formally hearing the disqualification application, considered that in the interests of justice the matter be allocated to another judge for hearing.  The matter was then referred to me. On 7 February 2024 the matter was called on for a Directions Hearing. At that time the plaintiff indicated that she would make an application that I disqualify myself on the grounds of actual and apprehended bias.  The matter was then adjourned to 7 May 2024, as the plaintiff at that stage had a special leave application on foot in respect of the Court of Appeal’s decision. The plaintiff has since informed the Court that the special leave application was dismissed on about 7 March 2024.

7On 6 May 2024 my chambers emailed the parties indicating the matter on 7 May 2024 would proceed by way of Zoom link. On 7 May 2024 the matter was called via the Zoom link.  There was no appearance for the plaintiff.  The plaintiff alleges she had attended at the Court that day in person, expecting the matter to be called in person.

8In any event, orders were made that day in her absence, setting-down the plaintiff’s disqualification application on 6 August 2024. The plaintiff was ordered to file and serve submissions by 11 June 2024, and the defendant was to file and serve submissions in response by 23 July 2024. The Other Matters section of the order made on 7 May 2024 notes:

“A. The parties were advised via email on 6 May 2024 that the Directions Hearing would take place on videolink.

B. The plaintiff appeared at the Court Registry in person on the morning of the Directions Hearing stating she was not aware the hearing would take place via videolink. The Court Registry made facilities available to the plaintiff to participate in the Directions Hearing online.

C. The matter was called at 9.30am. The plaintiff did not appear. The matter was stood down. His Honour Judge Pillay’s Chambers emailed the plaintiff requesting that she join the videolink. In addition His Honour Judge Pillay’s Chambers requested Court Registry provide the plaintiff with a print-out of the email advising the plaintiff to join the videolink. Registry staff were unable to locate the plaintiff to hand her the hard copy of the email.

D. The Directions Hearing resumed at approximately 9.40am. The plaintiff did not appear.”

9On 11 June 2024, the plaintiff duly complied with the order of 7 May 2024. Specifically, the plaintiff filed an affidavit sworn on 11 June 2024 together with submissions dated 11 June 2024 in support of her application that I disqualify myself. Additionally, that material was accompanied by:

i.Exhibit FAIOR1 dated 6 November 2019.

ii.Affidavit sworn on 6 November 2019 in respect of the judicial review of the Melbourne Magistrates’ Court decision made on 14 June 2019;

iii.Submissions dated 5 May 2023 in respect of the plaintiff’s application for the recusal of Judge Tran;

iv.Written case dated 30 June 2023 filed in the Court of Appeal in respect of the ruling of Judge Tran made on 5 June 2023;

v.Affidavit sworn on 14 December 2023 in respect of the plaintiff’s application for the recusal of Judge Tran;

vi.Exhibit RFA-1 dated 14 December 2023;and

vii.Exhibit RFA-2 dated 11 June 2024.

10On 22 July 2024, the defendant wrote to the Court in reference to the order of 7 May 2024. The defendant informed the Court that they did not consider there is any reason why I ought to recuse myself. The defendant did not file any corresponding material.

11On the hearing of the application the defendant appeared and announced that it would “assist the Court”. It advised that it neither consented to nor opposed the application. In the circumstances of the case, this position was unhelpful, given that there was no real debate about the issues pressed by the plaintiff. By taking no further role and not providing any submissions, the Court was deprived of the opportunity for the plaintiff’s submissions to be tested and explored.

12The plaintiff provided oral submissions which restated in short order the submissions she had made in writing dated 11 June 2024.

13She confirmed that her application for my disqualification was made on the basis of both actual and apprehended bias. In particular she referred to the orders I had made on 25 October 2019 in a previous matter she had had in this Court and the orders of 7 May 2024 as evidencing both actual and apprehended bias. 

14Before dealing with the substance of the application, it is necessary to set out in some detail the previous matter, AP-19-1476, in which the 25 October 2019 orders were made. That case concerned a personal safety intervention order which had been made against the plaintiff in the Magistrates’ Court by one Oscar Dobbs on 14 June 2019. The application made by Dobbs was done via a police informant Trent Dwyer. The plaintiff appealed the making of that order to the County Court. The matter was listed before me on 25 October 2019 for directions. The order is set out in the following terms:

“1. Matter called 3 times. No appearance by the Appellant

2. This Appeal is struck out as the Appellant did not appear at this Directions Hearing.

3. In the event the Appellant seeks to re-instate the appeal, he/she shall file an application with the civil registry of the Court ([email protected]) within 30 days of the service of this order, supported by a sworn (or affirmed) affidavit setting out the reasons for his/her non appearance. The application is to be served on all other parties to the Appeal. The application will be listed in the Directions List for a Directions Hearing to determine whether this Appeal should be re-instated. All parties shall be entitled to attend that hearing.

4. If the Appellant does not make application as referred to in Order 3, the Appeal will be dismissed.”

15The plaintiff further asserts that the Court was sent an email by a non-party (being Victoria Police)  and, without evidence that that party represented a party on record, I had dismissed the case. Specifically the plaintiff complains that I had acted on an email of one Helen Spowart, a managing principal advocate of Victoria Police, who represented the respondent at the appeal. In particular, the plaintiff asserts that I colluded with Ms Spowart in striking out AP-19-1476.

16To give the background to this allegation: Ms Spowart had emailed the Court purporting to represent the respondent. In an email on 10 October 2019, shortly after being copied into Ms Spowart’s application, the plaintiff had advised the Court that Ms Spowart did not represent the respondent, noting that Victoria Police was not a party to the County Court appeal, which was in respect of the revocation of an intervention order.

17It can be seen that the order made by me on 25 October 2019 was on the basis of the plaintiff’s non-appearance at the Directions Hearing. At that time the matter was in fact called at Court. It had not been dismissed prior to being called, it had not been adjourned, nor was it dismissed on any application by Victoria Police, Ms Spowart or the respondent.

Legal Principles to be applied

18As I have set out above, the plaintiff brings her application on the basis of both actual and apprehended bias.

19An application to disqualify a judge for actual bias requires the party making the allegation to establish that the judge is so committed to a particular outcome that they will not alter that outcome, regardless of what evidence or arguments are presented.[2] Such an allegation carries a heavy onus and must be clearly proven.[3]

[2]Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

[3]South Western Sydney Area Health Service v Edmonds 4 DDCR 421.

20The parties agree that the relevant legal principles as to the test for disqualification of a judicial officer in respect of apprehended bias are as set out by the High Court in Ebner v Official Trustee in Bankruptcy.[4] The test asks whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.

[4] (2000) 205 CLR 337 at 344 [6], see also Charisteas v Charisteas (2021) 273 CLR 289 at 296 [11].

21Beginning with the allegations in respect of actual bias. I cannot find any factual material to support a demonstration of actual bias. Starting with the 25 October 2019 matter, it can be seen that the matter was not adjourned but was in fact called on for hearing. Furthermore, it was not called on for audio-visual hearing, but rather was called in person. The plaintiff was not present. The matter was struck out with a right of reinstatement. This is no more than the usual course of action in Court matters.

22Secondly, in respect of the 7 May 2024 matter, at best, it could be said that there was confusion over the mode of appearance, but this did not in any way represent a mind foreclosed to the substance of the plaintiff’s case. This is because no substantive matters were decided and only timetabling orders were made. I therefore reject an application to disqualify myself on the basis of actual bias.

23Turning to the apprehended bias allegations. The 25 October 2019 matter represents no more than usual court practice where there has been non-appearance of a party. It does not, and in my mind could not, lead a fair-minded lay observer to apprehend that I was not going to bring an impartial mind to the substantive question before the Court.

24As to the 7 May 2024 matter, once again this represents usual court practice and not in any way engagement with the substantive matters of the case. I do not find that the plaintiff has satisfied the Court that a fair-minded lay observer might reasonably apprehend that I could not bring an impartial mind to the resolution of the matters in substance before the Court.

25For these reasons I will dismiss the plaintiff’s application to disqualify myself.

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