Boswell v Fawcett
[2025] VCC 556
•12 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
APPEALS AND POST SENTENCE APPLICATIONS LIST
Case No. AP-24-1480
| CASSANDRA BOSWELL | Appellant |
| v | |
| GAI FAWCETT | Respondent |
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JUDGE: | Pillay | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 April 2025 | |
DATE OF JUDGMENT: | 12 May 2025 | |
CASE MAY BE CITED AS: | Boswell v Fawcett | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 556 | |
REASONS FOR JUDGMENT
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Subject:Appeal against personal safety intervention order
Catchwords: Personal safety intervention order appeal – review of decision of Judicial Registrar – appellant and respondent are self-represented litigants – legal, factual or discretionary error – dispute between neighbours
Legislation Cited: Personal Safety Intervention Orders Act 2010
Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13; Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; Byrne v Owners of Ceresa River Apartments Strata Plan55597 [2016] WASC 153; Devries v Australian National Railways Commission (1993) 177 CLR 472; Lee v Lee (2019) 266 CLR 129; Blunt v Blunt [1943] AC 517; House v The King (1936) 55 CLR 499; Stead v State Government Insurance Commission (1986) 161 CLR 141
Judgment: Appeal dismissed
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APPEARANCES: | |
| For the Appellant | Ms Boswell, in person |
| For the Respondent | Ms Fawcett, in person |
HIS HONOUR:
Introduction
1In this proceeding, the appellant, Ms Cassandra Boswell appeals against a personal safety intervention order (“PSIO”) made at the Magistrates’ Court on 29 October 2024. Ms Boswell lodged her grounds of appeal on 1 November 2024. She alleges that there has been legal, factual and/or discretionary error which attends the decision of Judicial Registrar Rankin.
2This appeal is brought pursuant to the Personal Safety Intervention Orders Act 2010 (“the Act”).
3For the reasons which follow, I will dismiss the appeal.
Relevant background
4The factual matters relevant to the context of the appeal can be briefly stated.
5Ms Boswell and Ms Fawcett are neighbours living in Burwood. Ms Boswell lives in Unit 16 and Ms Fawcett lives in Unit 15. The allegations between both Ms Boswell and Ms Fawcett primarily involve exchanges of verbal abuse, harassment, stalking, and intimidation.
6Ms Boswell filed an application seeking a PSIO against Ms Fawcett on 6 December 2023 and Ms Fawcett filed an application seeking a PSIO against Ms Boswell on 25 April 2024.
Proceedings in the Magistrates’ Court
7The Judicial Registrar heard the five day contested hearing between 30 September 2024 and 4 October 2024 in relation to the cross applications under the Act. Pursuant to s 45 of the Act, the Court heard both applications together. Ms Boswell and Ms Fawcett both opposed final orders being made against them. Interim orders have been in place since 10 January 2024 in respect of Ms Boswell’s application, and since 26 June 2024 in respect of Ms Fawcett’s application.
8The Judicial Registrar found on the evidence that unless a final order was made, Ms Boswell would likely persist in engaging in prohibited behaviour towards Ms Fawcett. The Judicial Registrar determined that on the balance of probabilities, that the evidence did not establish Ms Fawcett committed prohibitive behaviour towards Ms Boswell. In this circumstance, a final order was made against Ms Boswell for the protection of Ms Fawcett. This order was made for 12 months until 29 October 2025. This is the subject of the appeal in this Court.
9The central issue in this case is to determine whether Ms Boswell can demonstrate that there has been a legal, factual or discretionary error in the decision by Judicial Registrar Rankin to grant a final protection order against her for the protection of Ms Fawcett.
10Ms Boswell submits that there has been a legal, factual or discretionary error in the decision by the Judicial Registrar to grant the application.
The hearing of the Appeal in this Court
11Ms Boswell filed submissions with the Court on 24 February 2025.
12Both parties were given the opportunity to make oral submissions.
13Ms Boswell made 10 separate subpoena applications to have individuals attend Court to give evidence, these applications were all denied.
14The appeal proceeded on the basis of the court book filed by Ms Boswell and nine additional tendered documents.
Relevant legal principles
15In the decision of the Honourable John Dixon J in AAA v County Court of Victoria & Ors (“AAA”)[1], John Dixon J considered the terminology associated with s 119 and particularly the meaning of the term “rehearing by the County Court” which appears there. In that case, his Honour held that an appeal under s119 is a broad appeal by way of rehearing. The features of such a broad appeal are the following:
a.that the appeal court will apply the law as it exists at the time of the appeal to the facts as it finds them;[2]
b.the powers of the appeal court are exercisable only where the appellant can demonstrate the original decision-maker made some legal, factual, or discretionary error;[3]
c.the appeal may be conducted by reference to the evidence given at the first instance, though with power to receive further evidence;[4]
d.the Court is required to assess and evaluate the evidence for itself.[5]
[1] [2023] VSC 13
[2] Ibid at paragraph [50]
[3] Ibid
[4] Ibid
[5] Ibid
16However, his Honour noted that an appeal of this nature did not have an immutable set of characteristics or inflexible boundaries but, ultimately, would be informed by the legislation creating the appeal right, the jurisdiction, the composition and functions of the tribunal from whose decision the appeal lies, and the individual circumstances of the case at hand. [6]
[6] Ibid at paragraph [54]
17As to any evidence which may be permitted at the rehearing, his Honour considered that new evidence could be admitted.[7] He elaborated that the appellate court is not confined to the record of evidence led at the original hearing, and may hear new evidence presented on the appeal. It is then the appeal court’s function to apply the law at the time when the appeal is heard to consider all of the admitted evidence. He summarised this as being an appeal by way of rehearing based upon the evidence given in the court of first instance, supplemented by further evidence.[8]
[7] Ibid at paragraph [63]
[8] Ibid at paragraph [51(b)] relying on Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624,
645 at [65]
18Broadly, the ratio of that case was that an appellant needs to demonstrate a legal, factual or discretionary error in the Magistrates’ Court’s decision to enliven the jurisdiction of this Court. Such error may be proved after an examination of the transcript in the Magistrates’ Court, to examine the conduct of the proceeding and any reasons for decision.
Errors of law, fact and discretion
19What constitutes an error in any particular case is wholly dependent on the evidence considered in the context of the objective findings of the primary judge.[9] With that said, established legal principles operate to guide the courts through an assessment of claimed errors. I turn now to briefly consider those.
[9] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Legal error
20A legal error may arise in the way in which a court:
“undertakes its fact-finding, or … in the way in which it construes the statute which it is applying in a particular case, or in some other aspect of its reasoning”. [10]
[10] Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 at paragraph [23]
21Appeals operate as a safeguard against these errors, to ensure that courts and tribunals operate within their jurisdiction.[11]
[11] Ibid
Factual error
22A factual error arises when a trial judge’s findings of fact are “glaringly improbable” and “inconsistent with facts incontrovertibly established by the evidence”.[12] A factual error does not arise simply because an appellate court considers that the probabilities of the case are against that finding of fact.[13]
[12] Devries v Australian National Railways Commission (1993) 177 CLR 472 at paragraph [479]
[13] Ibid
23The legal principles with respect to factual errors were summarised by Bell, Gageler, Nettle and Edelman JJ in Lee v Lee:[14]
“A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’.”
[14] (2019) 266 CLR 129 at [55]
24Similarly, in Blunt v Blunt it was said:
“If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal.” [15]
[15] [1943] AC 517 at paragraph [526]
Discretionary error
25Where the evidence identifies an error by the trial judge in the exercise of their discretion, the appellate court may then exercise its own discretion on that point.
26The legal principles with respect to discretionary errors were identified by Dixon, Evatt and McTiernan JJ in House v The King: [16]
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion to which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[16] (1936) 55 CLR 499 at paragraphs [504-505]
27Having set out those principles, I now turn to the grounds of appeal pressed by Ms Boswell.
The grounds of appeal
28Ms Boswell filed a statement setting out her grounds of appeal, and she read from a written document which has been marked for identification. At the hearing, Ms Boswell was provided time to make oral submissions to clarify her grounds of appeal and written submissions. I have read these submissions and refer to the documents in tandem with her oral submissions in my consideration of whether Ms Boswell can demonstrate legal, factual, or discretionary error in the decision of the Judicial Registrar.
Ground 1: “I was denied procedural fairness at the IVO contest hearing at the Ringwood Magistrates’s [sic] Court in circumstances where I was not afforded an opportunity to present all my evidence and the Judicial Registrar sent away three of my witnessess [sic], the fourth oner [sic], Shane Bye [sic] didn’t attend and the Judicial Registrar didn’t enforce any repercussions for not attending even though Shane bye [sic] and all my witnesses where [sic] subpoenaed by me and filed at the Ringwood Magistrates’ Court.”[17]
[17] Appellants written submissions dated 19 February 2024 at paragraph [1]
29I interpret this to be an allegation that she was denied procedural fairness and consequently Ms Boswell submits an error of law has been made. I reject that submission because I find:
a. The proceeding at the Magistrates’ Court was conducted over a five day period. Ms Boswell gave evidence at the Magistrates’ Court on 30 September 2024. Ms Boswell was provided the opportunity to present all relevant evidence comprising of further and better particulars, photographs, video footage, surveillance footage, audio recordings, medical records and maps in relation to the application for the PSIO. [18]
b. As to the witnesses who did not give evidence:
i.the Judicial Registrar ruled their evidence was irrelevant;
ii.even if there was any relevant evidence they could give, Ms Boswell has not explained in any way how such evidence could rationally effect the ultimate decision, much less change it.[19]
[18] Transcript (‘T”) 642, Line (“L”) 10-14
[19] Stead v State Government Insurance Commission (1986) 161 CLR 141
30I dismiss this ground of appeal.
Ground 2: “Bias was shown against me during the hearing as [sic] the Ringwood Magistrates’ Court Desk Clerk was ‘rude and arrogant’ towards me after they told me my blue USB that I submitted to rely on for my evidence had no files on it. I had vomit up to my throat. The Respondent said her copy had all my files on it. The Desk Clerk told me there were only 15 files on my blue USB and at lunchtime when I went to Officeworks there was nothing except corrupt files on my blue US [sic]. I still have the blue USB to produce as evidence. I asked to play the red USB and was told by the Judicial Registrar this USB related to Catherine Lynch’s evidence and I wasn’t allowed to rely on it and was told I would get the red USB after the 5 Day hearing. I would also like to tender this USB as evidence.”[20]
[20] Appellants written submissions dated 19 February 2024 at paragraph [2]
31I interpret this to be an allegation that she was unable to present all her evidence due to a technical issue. In that, it appears Ms Boswell submits an error of law has been made. I reject that submission for the reasons set out above and further, because the material on the Red USB largely mirrors that on the Blue USB. To the extent there is a discrepancy, no submission was made as to how that material could rationally effect the ultimate decision.
32I dismiss this ground of appeal.
Ground 3: “Judicial Registrar Rankin was “not interested in anything I said” but listened and believed Ms. Fawcett, suggesting the officers of the Court had pre-conceived opinion of me.”[21]
[21] Ibid at paragraph [3]
33I interpret this to be an allegation that the Judicial Registrar was biased. In that it appears Ms Boswell submits an error of law was made. I reject that submission because I find:
a. as per Ground 1, paragraph a, Ms Boswell was provided the opportunity to give evidence in Court;
b. comprehensive reasons were provided explaining the Judicial Registrar’s decision to grant the final order;
c. a close reading of the transcript does not reveal any bias in the reception of evidence before the Court. Similarly, the reasons deal with all relevant aspects of Ms Boswell’s case and set out why her evidence was rejected, and why Ms Fawcett’s evidence and those witnesses she called were accepted. A logical path of reasoning can be discerned.
34I dismiss this ground of appeal.
Ground 4: “I was the Applicant in this matter and never had the opportunity Under Oath to give my evidence.”[22]
[22] Ibid at paragraph [4]
35I interpret this to be an allegation that she was denied the ability to give evidence and consequently it appears Ms Boswell submits an error of law was made. I reject that submission because I find:
a. as per Ground 1, paragraph a, Ms Boswell was provided the opportunity to give evidence in Court and did so.
36I dismiss this ground of appeal.
Ground 5: “I made five Police Statements and tended [sic] them as evidence, Ms. Fawcett had none and told Judicial Registrar Rankin I did nothing to her.”[23]
[23] Ibid at paragraph [5]
37I interpret this to be an allegation that there was a failure to have a fair hearing and consequently it appears Ms Boswell submits an error of law has been made. I reject that submission for the reasons set out above and:
a. as per Ground 1, paragraph a, Ms Boswell was provided the opportunity to give evidence in Court;
b. comprehensive reasons explaining the Judicial Registrar’s decision were provided.
38I dismiss this ground of appeal.
Ground 6: “Ms. Fawcett and ms. [sic] Lynch bullied the previous Tennant in my Unit and she was Transferred immediately.”[24]
[24] Ibid at paragraph [6]
39I do not understand what the alleged error is. I dismiss this ground of appeal.
Ground 7: “Ms. Fawcett never filed Further and Better Particulars by due date and her fictitious and malicious Cross Application is not consistent to her Application or evidence.”[25]
[25] Ibid at paragraph [7]
40I do not understand what the alleged error is. I dismiss this ground of appeal.
Ground 8: “Ms. Fawcett’s witnesses were allowed to give evidence remotely and were lying Under Oath.”[26]
[26] Ibid at paragraph [8]
41I do not understand what the alleged error is. I dismiss this ground of appeal.
Ground 9: “Ms. Fawcett alleges I had a machette [sic] and broke into one of the Unit’s and witnessed everything but never reported this to Police.”[27]
[27] Ibid at paragraph [9]
42I do not understand what the alleged error is. I dismiss this ground of appeal.
Ground 10: “The video on my Security Camera shows Ms. Fawcett with Mr. Cocking and Mr. Fontanna on Christmas Eve, 2024 existing [sic] Ms. Lynch’s Unit and Ms. Fawcett go to her Unit and you can hear her door close before the two men come to threaten to beat my fucking head in. Mr. Fontanna is the boyfriend of Ms. Fawcett.”[28]
[28] Ibid at paragraph [10]
43I do not understand what the alleged error is. I dismiss this ground of appeal.
Ground 11: “Ms. Lynch made a false Triple Zero call and told Victoria Police I hit her with my car and produced fake photographs to the Ringwood Court. This proves Ms. Lynch and Ms. Fawcett which proves they are both trying to set me up.”[29]
[29] Ibid at paragraph [11]
44I do not understand what the alleged error is. I dismiss this ground of appeal.
Ground 12: “Ms. Lynch was granted a full conditioned Personal Safety Order on me without giving any evidence under Oath, I have the Transcript of her hearing and the Transcript of Ms. Fawcett’s evidence Under Oath that is not consistent to her evidence or her original Application.”[30]
[30] Ibid at paragraph [12]
45I do not understand what the alleged error is. Further, Ms Lynch was not the respondent below or in this Court. I dismiss this ground of appeal.
“Ground 13: At my Directions Hearing Ms. Fawcett spoke the whole time even though it was my Application.”[31]
[31] Ibid at paragraph [13]
46I do not understand what the alleged error is. To the extent this refers to an alleged failure to have a fair hearing, I repeat my reasons in respect of Ground 1. I dismiss this ground of appeal.
Ground 14: “Ms. Fawcett and Ms. Lynch concocted a calculated witch hunt on me to destroy my creditability and to cause me trouble with Depot of Housing and Victoria Police and a series of oroblematic [sic] interactions with Ms. Fawcett and Ms. Lvnch [sic] and reoorts [sic] to Victoria Police.”[32]
[32] Ibid at paragraph [14]
47I do not understand what the alleged error is. I dismiss this ground of appeal.
Conclusion
48For the reasons above, I will dismiss this application to appeal.
Subpoenas
49Kaur and Cattapan applied for costs in respect of the dismissal of subpoenas against them. This application was adjourned. Parties, including for Kaur and Cattapan, are to file any submissions in respect of costs limited to 2 pages within 7 days. Such applications will be dealt with on the papers.
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