Buchanan v Lillie (Ruling)
[2024] VCC 1437
•18 September 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. AP-24-0780
| LEIGH BUCHANAN | Appellant |
| v | |
| PAULA LILLIE | Respondent |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 August 2024 | |
DATE OF RULING: | 18 September 2024 | |
CASE MAY BE CITED AS: | Buchanan v Lillie (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1437 | |
DECISION
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Subject:REFUSAL OF PERSONAL SAFETY INTERVENTION ORDER
Catchwords: Legal, factual or discretionary error – appeal devoid of merit
Legislation Cited: Personal Safety Intervention Orders Act 2010; Family Violence Protection Act 2008
Cases Cited:AAA v County Court Victoria & Ors [2023] VSC 13
Ruling: Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Mr N Mutton | Hutchinson Legal |
HIS HONOUR:
Introduction
1As I shall explain, this proceeding is an example of the ugly reality of unmeritorious litigation and the use of a legal process in circumstances that pose a risk of further distress to a party.
2Mr Leigh Buchanan brings this appeal from the decision of a Magistrate made on 31 May 2024 to refuse his application pursuant to the Personal Safety Intervention Orders Act 2010 (“the Act”) for a Personal Safety Intervention Order (“PSIO”).
3Mr Buchanan had sought a PSIO against a former neighbour of his, who is the respondent to this appeal. His application in the Magistrates’ Court proceeded over two hearing days, during which time witnesses were called and evidence tendered. I have had the benefit of reading the transcript of the Magistrates’ Court hearing. I consider that the presiding Magistrate demonstrated considerable patience and impartiality during the hearing in circumstances where that may have been no easy task because of the way Mr Buchanan conducted his application for a PSIO.
4In seeking a PSIO, Mr Buchanan broadly alleged that the respondent had committed “prohibited behaviour” as defined in the Act by way of harassment, interference with property and stalking.
5However, as the proceeding evolved, the broad allegations of “prohibited behaviour” fell away and were replaced by baseless allegations, submissions and complaints that had no evidentiary basis.
6Regardless of the merits, by the time the application was heard, Mr Buchanan had moved to an address unknown to the respondent, and there was simply no evidence that the respondent was likely to continue to engage in prohibited behaviour towards him, even if she had done so in the past, which, to be clear, she had not.
7The Magistrate correctly pointed out to Mr Buchanan (several times) that there was a total lack of evidence that the respondent was likely to continue to engage in “prohibited behaviour” and therefore there was no basis under the Act to make the order sought.
8Undeterred, Mr Buchanan made submissions to the Magistrate regarding the operation of the Family Violence Protection Act 2008 (“the FVPA”) as a ground for the order sought by him. As the Magistrate carefully explained to him, the FVPA did not apply to Mr Buchanan’s application for a PSIO, but nevertheless he persisted with submissions regarding the FVPA.[1] This highlights the way he conducted the proceeding, that is, to rely on a scatter gun approach of ideas as opposed to evidence, supported by baseless allegations and irrelevant submissions.
[1] Transcript (“T) 155, Lines (“L”) 26-31 – T 156, L 1-8.
9I pause to note that the respondent had initially sought a PSIO against Mr Buchanan, but sensibly did not pursue that application because by the time the proceeding was heard in the Magistrates’ Court, Mr Buchanan had moved address and was no longer disturbing the peace in the neighbourhood.
Legislative provisions
10The power to make a final PSIO is set out in s61 of the Act as follows:
“(1) The court may make a final order if the court is satisfied, on the balance of probabilities, that—
(a) the respondent has—
(i) committed prohibited behaviour against the affected person and—
(A) is likely to continue to do so or do so again; and
(B) the respondent's prohibited behaviour would cause a reasonable person to fear for his or her safety; or
(ii) stalked the affected person and is likely to continue to do so or do so again; and
(b) the respondent and the affected person are not family members; and
(c) it is appropriate in all the circumstances of the case to make a final order.”
11“Prohibited behaviour” is defined in s5 of the Act as follows:
“For the purposes of this Act, prohibited behaviour is—
(a) assault; or
(b) sexual assault; or
(c) harassment; or
(d) property damage or interference; or
(e) making a serious threat.”
12“Harassment” is defined in s7 of the Act as follows:
“For the purposes of this Act, harassment means a course of conduct by a person towards another person that is demeaning, derogatory or intimidating and includes such conduct that is carried on by or through a third person.”
13“Serious threat” is defined in s9 of the Act as follows:
“For the purposes of this Act, a serious threat means—
(a) a threat to kill, within the meaning of section 20 of the Crimes Act 1958;
(b) a threat to inflict serious injury, within the meaning of section 21 of the Crimes Act 1958.”
Legal, factual and discretionary error
14Mr Buchanan is seemingly aggrieved by the refusal to make a PSIO and brings this appeal in accordance with s91 of the Act.
15Section 96 of the Act provides that the appeal is by way of rehearing. Section 96(2) prescribes the power that this Court may exercise on appeal, including to confirm, set aside, or vary the “relevant decision”.
16Because of the decision of J Dixon J in AAA v County Court Victoria & Ors (“AAA”),[2] the appellate jurisdiction of this Court is enlivened only upon the appellant demonstrating legal, factual or discretionary error in the Magistrates’ Court’s decision.
[2][2023] VSC 13.
17Therefore, for this appeal, the Court does not “start again”. Rather, the task is to review the evidence before the Magistrate, and the reasons of the Magistrate, to consider the threshold issue of whether legal, factual or discretionary error has been established. If error has not been established, then the appeal must fail because the appellate jurisdiction is not enlivened.
The appeal must fail
18To determine whether the Court’s appellate jurisdiction is enlivened, I have considered the transcript of the hearing held 30 and 31 May 2024 in the Magistrates’ Court, together with the evidence relied on and the further documents filed in this Court.
19Mr Buchanan filed Grounds of Appeal in this Court dated 3 June 2024. Those grounds were expressed as: legal error – “ignored constitutional law”; factual error – “limited cross examination”; and, discretionary error – “ruled with lack of impartiality”.
20Mr Buchanan gave evidence before the Magistrate and was allowed to cross-examine witnesses, including the respondent and his previous landlord. He made baseless claims before the Magistrate including that the respondent had encouraged the local Council to harass him about the unkempt condition of the lawns and garden at his rental property, and encouraged the fire brigade to attend his property when he lit a large fire seemingly as a means of bringing the unkempt garden under control. He produced no evidence to enable a conclusion of “prohibited behaviour”, other than perhaps a conclusion that it was he who had engaged in “prohibited behaviour”.
21Because the evidence and the transcript of the reasons of the Magistrate revealed no error, at a directions hearing on 22 August 2024, I ordered that Mr Buchanan file submissions in support of his appeal, directed to the claimed legal, factual or discretionary error by the Magistrate in refusing his application for a PSIO.
22On 22 August 2024, I advised the parties that upon provision of Mr Buchanan’s submissions I would then consider whether Mr Buchanan had demonstrated an arguable case to prove error, failing which the appeal would be dismissed and the relevant decision of the Magistrate would be confirmed. In response, on 5 September 2024 Mr Buchanan filed a document described by him as a “Supporting Dossier for Appeal to the County Court.”
23Contrary to the instruction provided to him as set out in Court Orders, Mr Buchanan’s “dossier” does not sensibly engage with the threshold issue of whether there was legal, factual, or discretionary error by the Magistrate to enliven the appellate jurisdiction of this Court. Instead, Mr Buchanan chose in his “dossier” to provide an irrelevant and rambling commentary. Regrettably, he also chose to use his dossier as an opportunity to make more baseless and highly offensive comments about the respondent.
24For this appeal, it is timely to recall what was said by J Dixon J in AAA, albeit in a discussion about appeals brought under the FVPA. As his Honour said, the limited nature and right of an appeal under the FVPA (and because of the like provisions, also an appeal under the Act) is:
“to prevent an appellant using the appeal as a vehicle to cause further distress to the affected person without bearing any risk of a worse result”.[3]
[3] AAA at [64].
25The way Mr Buchanan has conducted himself, in both this Court and in the Magistrates’ Court, highlights the requirement to ensure that unmeritorious applications for intervention orders and related appeals are not used as vehicles to cause further distress or trauma to an affected person.
26To allow this appeal to continue any further would achieve nothing more than run the risk of allowing it to be used to cause further distress to the respondent.
27In summary, this appeal is without merit. There is no proper basis to conclude that Mr Buchanan has an arguable case to establish legal, factual or discretionary error by the Magistrate. The appellate jurisdiction of this Court is not engaged, and the appeal must be dismissed.
28I shall make Orders to give effect to these reasons.
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