Critchley v Magistrates' Court of Victoria
[2019] VSC 435
•6 August 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 02995
| CLAUDE RAYMOND CRITCHLEY | Appellant |
| v | |
| MAGISTRATES’ COURT OF VICTORIA | First Respondent |
| and | |
| DIANNE MAY ESBENSEN | Second Respondent |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 June 2019 |
DATE OF JUDGMENT: | 6 August 2019 |
CASE MAY BE CITED AS: | Critchley v Magistrates’ Court of Victoria |
MEDIUM NEUTRAL CITATION: | [2019] VSC 435 |
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JUDICIAL REVIEW AND APPEALS – Appeal under s 109 of the Magistrates’ Court Act 1989 (Vic) against a Magistrate’s decision to make a final intervention order under Personal Safety Intervention Orders Act 2010 (Vic) (‘PSIO Act’) against a person with a cognitive impairment – Leave to appeal out of time granted – Whether there is an established principle of comity which operates to bind the decisions of lower courts in addition to the established doctrine of precedent – Valentine v EID (1992) 27 NSWLR 615, referred to – Applicability of principle of comity determined by the proper characterisation of the first court’s decision – Where the learned Magistrate was merely applying rather than construing the statutory provision – Eames v Eames [2018] Fam CAFC 204, referred to – Whether the learned Magistrate erred in exercising his discretion – Broad discretion conferred by the statutory provision s 61 of the PSIO Act – Principles for appeal against a decision maker’s exercise of discretion governed by House v The King (1936) 55 CLR 499 – Findings of fact ought not to be treated as principles of law – Teubner v Humble (1963) 108 CLR 491, considered and applied – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr G Nash QC with Ms J Clark | Peter Baker & Associates |
| For the First Respondent | No appearance | |
| For the Second Respondent | Ms P J Marcou with Mr D Connors | Docherty Legal |
HER HONOUR:
Introduction
The appellant, Mr Critchley, is a single unemployed man in his sixties with a mild intellectual disability and reasonably severe mental health problems.
The appellant attended a special education school from a young age, and has lived in institutions from around the age of twelve until the age of 27, when the Sandhurst Centre in Bendigo closed down as a result of widespread de-institutionalisation of mental health facilities in Victoria. Since being released from institutional care, the appellant has lived in and around Bendigo. His financial affairs are managed by State Trustees Limited.
The appellant lives in public housing, and spends his waking hours walking around the streets of Bendigo. From around the late 1990s, some members of the Bendigo community began to take issue with the appellant’s demeanour and behaviour. His appearance is often unkempt. The appellant sometimes takes leftover food from outdoor café tables, which leads to verbal altercations between him and business owners, a number of whom have repeatedly taken out intervention orders against him. He is regularly taunted by young people, and their derogatory comments upset the appellant, who sometimes reacts angrily. On the other hand, there is a support group formed by a number of business people in Bendigo (collectively ‘Friends of Claude’) who provide food, cleaning and laundry services, and social support to the appellant.
As noted by Dr Danny Sullivan, a psychiatrist, in a report dated 19 September 2013:
In part, Mr Critchley’s presence in the community is as a result of the widespread closure of institutions of the disabled where treatment was widely acknowledged as inhumane. His social behaviour was acquired in the institutions which our society used previously to hide away the disable from any meaningful participation in community life.
And, further, relevantly for the purposes of the current proceeding:
I consider that Mr Critchley has a basic understanding of the nature and effect of an intervention order. However, his capacity to comply with intervention orders is limited due to executive dysfunction which is an element of his cognitive impairment, that being congenital intellectual disability.
Dr Sullivan’s observations and findings were consistent with those of Dr Lester Walton some eight years earlier, in a report dated 5 August 2005. Doctor Walton stated as follows:
This man is likely to require ongoing, fairly close supervision in the community for the indefinite future. He will also require medication indefinitely, and it would seem that he is willingly compliant with that. I have no suggestions to make regarding changed management. To state the obvious, the more secure option in terms of diminishing any adverse impact upon the community by placing Mr Critchley permanently in an institution, is simply not available. In fact, it is only because the opposite process has occurred that this man finds himself before the Court. Without being too histrionic, I believe that the community does bear some responsibility for Mr Critchley’s misconduct. He is a registered client of Intellectual Disability Services and thus there is an obligation to provide him with appropriate services in the community.
The second respondent, Reverend Diane Esbensen[1] is a minister with St Andrews Uniting Church. She has responsibility for two Uniting Church parishes in Bendigo.
[1]The first respondent is the Magistrates’ Court of Victoria, which has informed the Court that it will abide by the decision of this Court pursuant to R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
The proceeding below
On 16 May 2018, the second respondent made an application to the Magistrates’ Court at Bendigo for an intervention order against the appellant under the Personal Safety Intervention Orders Act 2010 (Vic) (‘PSIO Act’). In her application, the second respondent stated as follows:
I know the respondent as he interrupts Sunday & other worship events at Forest St & St Andrews Uniting Churches where I am a minister. I have known him approx 3 years.
On Sunday 8 April 2018 I arrived at Forest St Uniting Church at 9.10am. I noticed that the hall & church were both open. Parked my car in the usual place & paused to collect my thoughts for the morning. One of our members was sitting in her car (just a couple of metres from my car) & Claude came from our hall & stopped at her closed drivers side window & began waving his arms & shouting ‘I just want to say hello’ & calling her a ‘stupid bitch’. I got out of my car & said to Claude that he needed to calm down & stop shouting. As he came toward me, arms flailing, he said, ‘I just want to talk to her’. I calmly suggested that sometimes people just need to sit quietly on their own. He come closer to me & shouted I just wanted to say hello. I asked Claude to calm down & he said ‘you are a fucking cunt and stupid bitch’. I asked Claude to leave & he called me a fucking cunt & stupid bitch again as he left. We had our service & at its conclusion while I was being supported by Judy Causon (Presbytery Chairperson) & Pastor Rob Dalgleish, who had both attended the service, I was told that Claude had returned & was waiting for me in the hall. We walked to the hall where Claude was waiting in the foyer –he stood up, stood over me & while only inches from my face shouted ‘if you claim to be a born again Christina you should behave better & youre just a fucking bitch. And he left. Each of these encounters left me shaken up & in tears, concerned for my wellbeing & the wellbeing, safety of my congregation – most especially the frail aged who could be knocked over & hurt in an episode of Claudes abuse, flailing arms & sudden unpredictable movements. I struggled to lead worship & took time to acknowledge that several of us were feeling shaken up and to hope for clam for Claude. After the second incident I felt really threatened & at risk, having someone so angry, aggressive & verbally violent within inches of my face.
Over the past 3 years Claude has verbally interrupted services, spoken to me & others in inappropriate & abusive ways, at both Forest St & St Andrews on a number of occasions. Several times he put his arm around me – once during a service he did so & before I could remove myself he kissed me on the cheek & said ‘see I can kiss the minister’. This happened at services at St Andrews early in 2017, in front of the congregation.
March/April 2017 We had put in place a set of boundaries for Claude, following this Claudes attendance became sporadic & on most occasions offensive.
2/4/2017 Claude attended & swung his arm in my face, missing me, while shouting insults, returned later & put his arm firmly on my shoulders, returning again to interrupt another group & told me to ‘bugger off’ & ‘fuck off’.
30/7/2017 Claude attended, was abusive, inappropriately interacting with children, loitering & verbally assaulted & threatened my husband & myself.
September 2017 we reinforced boundaries with Claude & did not see him for a few months.
25/1/2018 Claude attended a funeral service without incident, but caused disruption at refreshments until asked to leave.
30/3/2018 Claude attended shouting ‘Happy Easter’ over & over & then come close to my face & shouted ‘Yes I know I am not supposed to be here’.
Every Sunday Im anxious, uncertain & fearful. I am anxious & fearful for myself & congregation. I am responsible for others safety & I cannot feel safe myself. The uncertainty of Claudes behaviour has resulted in people not attending & strains my ability to do my job.
I believe Claude knows exactly what he is doing & saying, his behaviour is confronting & manipulative. His verbally abusive & violent behaviour is consistent & is mainly addressed towards women & usually me. The behaviour has escalated & I have no evidence that this will change & I live with the anxiety of it happening every time I am leading service or happen to see him in the community.
The second respondent was granted an interim intervention order on 16 May 2018. On 19 October 2018, after a hearing, Judicial Registrar McCann of the Bendigo Magistrates’ Court made a final intervention order against the appellant under the PSIO Act for a period of twelve months. He ordered that the appellant must not:
1.Commit prohibited behaviour towards the protected person(s). NOTE – Prohibited Behaviour is assault, sexual assault, harassment, property damage or interference, or making a serious threat.
2.Go to or remain within 50 metres of any place where a protected person lives or works.
This intervention order expires at midnight on 19/10/2019, unless extended or varied prior to that time. The Current INTERIM intervention order will remain in place until this final intervention order is served on the respondent.
The orders carried a warning to the appellant that contravention of the intervention order is a criminal offence, and carries a maximum penalty of 240 penalty units and/or two years’ imprisonment.
In making the intervention order, the Judicial Registrar had regard to the viva voce evidence given by the following witnesses:
(a) the second respondent;
(b) Mr David Cassells, a retired school teacher and a chairperson of the church council of the parishes that the second respondent is responsible for; and
(c) Mr Robert Cooke, a retired local businessman.
Each of these witnesses were cross‑examined. The second respondent also relied upon the affidavits sworn by the above witnesses, and affidavits sworn by Mr Robert Dalgliesh and Ms Judith Causon.
The Judicial Registrar also had regard to documents tendered in court, the behaviour of the appellant in court, and the submissions made by the parties’ legal representatives.
In his affidavit, Mr Dalgliesh deposed as to what occurred during an incident after a church service on 8 April 2018, as follows:
The [appellant] was at the entrance to the hall and I observed him to be in an agitated state. There was an unpleasant exchange of words, some swearing and exaggerated arm movement by the [appellant]. [The second respondent] then said words to the effect of ‘that you go first Claude and have your say and then I’ll have my say.’
I observed that the [appellant] was very aggressive and certainly invaded [the second respondent’s] personal space. He was standing in an overbearing manner approximately centimetres from [the second respondent’s] face. I do not recall the exact words of the Respondent as he was not really making much sense. The [appellant] then left in a flurry without [the second respondent] being given a chance to reply.
Mr Dalgliesh also deposed that he witnessed the appellant at the other parish of St Andrew’s Uniting Church, Bendigo on three occasions. He recalled that on each occasion the appellant had been disruptive and shown a lack of respect towards those leading the worship and members of the congregation. Mr Dalgliesh deposed:
... the appellant seems to me to be very much in control of the situation and bullies well-meaning church going women and to a lesser extent men that are slight or frail.
In her affidavit, Ms Causon, an elder of the Uniting Church congregation, deposed that she was familiar with the appellant through church services over a number of years and in her role with Uniting Bendigo Emergency Relief. Further, in relation to the incident on 8 April 2018, Ms Causon deposed as follows:
I recall that the [appellant] was loud and abusive. The appellant insisted that he be heard before the [second respondent] spoke, pushed his face into hers as he shouted at her, then stormed off without allowing her to speak.
The second respondent deposed, in an affidavit sworn on 27 September 2018, as follows:
The [appellant] on several occasions placed his arm around my body, without my prior agreement. I protested on each occasion and removed myself from his grasp. On each occasion I asked the [appellant] not to behave in this manner. On at least one occasion in early 2017, during a service of worship at St Andrew’s church, the [appellant] placed his arm around my body, and before I could remove myself, the [appellant] kissed me upon the cheek, and then said ‘see, I can kiss the minister.’
The second respondent further deposed:
It reached the point, whereby I was becoming quite anxious and fearful of attending church each Sunday, as I could not predict if the [appellant] was going to attend and disrupt the service or become threatening and abusive when challenged.
The second respondent gave evidence that she had to be present at church during church services and other occasions, and, in the absence of any restriction upon the appellant attending the church premises, she was unable to fulfil her ordinary duties without being concerned for her safety.
The second respondent also gave evidence that there had only been one attendance by the appellant upon church premises since the intervention order had been in place. At that point, the appellant interrupted and said:
There’s been no attendance, I and you know that. I have not been anywhere near the church since the intervention order was there. I haven’t been to the church.[2]
[2]Transcript, p. 9.
Mr Cassells gave evidence that, at the second respondent’s request, he rang the Bendigo Police to report the appellant’s breach of the interim intervention order one time on 9 April 2018.[3] However, the appellant was not charged as a consequence of this breach.
[3]Ibid, p. 25.
Mr Cooke gave the following evidence on behalf of the appellant:
I know this is a very difficult case for everyone and having known Claude for so long and seeing this wonderful young boy who has obviously met with disabilities but has always done the right thing and looked after things and even show, I guess, an emotion, when I was involved with Horizon House... a house for young people that are homeless, Claude came along one day and he brought in some clothes for them and I thought it was one of the most moving things I’d seen and he understood what he was doing and I think it reflects him but then on the other hand he does have that extraordinary behavioural problems sometimes where people, and particularly in Bendigo where it’s so well-known, and particularly amongst young people, they bait him and entice him and annoy him and then he gets upset and providing you work with Claude, - and I know that’s difficult sometimes, he’s a wonderful young man.[4]
[4]Transcript, p. 31-32.
Mr Cooke also gave evidence that he understood the appellant was a participant in the National Disability Insurance Scheme (‘NDIS’):
... the services [the NDIS] provide is obviously not supervision day and night. They take him to the football, the races, they take him to lots and lots of places he has never been and he behaves at those places too and as well as that they’re looking after his house, which was a terrible mess, and they’re providing food and other items so it’s a terrific service, the NDIS system, which has helped.[5]
[5]Ibid, p. 37-38.
In each of the expert reports provided by the appellant, the expert was retained to conduct psychiatric and psychological assessments of the appellant in relation to proposed intervention orders and outstanding criminal charges.
The findings of the experts were largely consistent. They agreed that the appellant has a mild intellectual disability, and suffers from a serious psychiatric condition (paranoid schizophrenia). Those impairments, combined with his history of institutionalisation (and deinstitutionalisation), his reluctance to seek treatment, and his habit of spending his daytime hours in public means that he is considered by many in the community to be a public nuisance, and he is vulnerable to taunts and provocation from those in the community who are disposed to such behaviour. As a result, he regularly engages in eccentric and/or anti‑social behaviour which attracts the attention of the police. He has a basic understanding of the nature and effect of an intervention order, but his impairments, and in particular his lack of impulse control, affect his ability to consistently comply with those orders. It was in this context that Judge Lacava , in Claude Raymond Critchley v Dennis Raftery in the County Court of Victoria in 2014 (‘Critchley v Raftery‘), observed that:
At the end of the day, this problem is partly caused by medical problems, psychiatric illness but, above all, it is a social problem which in my view should not be attended by the criminal law.[6]
[6]Transcript pf Critchley v Raftery, (‘County Court transcript’) p 7.
Accordingly, while neither of the Judicial Registrar or the learned Magistrate referred to the evidence in these terms, the following conclusions can be derived from the evidence regarding the appellant’s background and personal circumstances, and the dealings between the appellant and the second respondent:
(a) the appellant’s cognitive impairments, and his associated eccentricities and lack of impulse control, means that he often engages in disruptive behaviour which might be considered by many to be a nuisance, and he is unlikely to change;
(b) the second respondent came to know the appellant as he reasonably frequently attended church services and after service refreshments;[7]
[7]There was evidence to suggest that on Sundays, the appellant visited church services, and after service gatherings for refreshments, as shops and cafés in the Bendigo CBD were generally closed.
(c) the appellant was often disruptive at church, and verbally abused the second respondent regularly, including swearing at her aggressively. He physically assaulted her on a number of occasions, although she suffered no lasting injuries;
(d) the appellant’s conduct also disrupted the activities and function of the congregation, with the appellant’s offensive conduct disproportionately directed at women, children, and the elderly; and
(e) attempts by the second respondent and other senior members of the church congregation to establish and police boundaries around the appellant’s conduct were unsuccessful. An offer made by Mr Baker, Mr Cooke and others to accompany the appellant to church on Sundays was rejected, apparently upon the basis that the mere presence of the appellant at church causes the second respondent anxiety, and affects her ability to carry out her work.
The appellant’s solicitor, Mr Baker, conceded that the appellant understood ‘the nature and effect of a final order’ under s 61(2)(b)(i) of the PSIO Act.[8] Therefore, the main issue was whether or not the appellant would be able to comply with the conditions of any final order owing to his cognitive impairment.
[8]Transcript of proceeding before the Judicial Registrar on 19 October 2018 (‘Transcript’), p.70
Counsel for the second respondent objected to the admissibility of the expert reports tendered on behalf of the appellant, because they were out of date. The Judicial Registrar expressed some scepticism regarding the expert reports, which he described as ‘one-off reports’. The appellant’s solicitor suggested that the Judicial Registrar consider the appellant’s behaviour in court to save obtaining a new medical report. The Judicial Registrar agreed to take the appellant’s behaviour in court into account when making his decision.[9]
[9]Transcript, p. 42.
The appellant’s solicitor tendered a document evidencing the appellant’s prior criminal record in Court, which showed that the appellant reached the age of 49 in 2005 before he had any court appearances for criminal matters, but since that time, the appellant has been charged with 26 separate breaches of intervention orders.
The submissions made by the appellant’s solicitor before the Judicial Registrar were summarised in his affidavit sworn on 11 December 2018 in this proceeding, as follows:
(i)There was only limited prohibited behaviour as defined in the Act by Mr Critchley.
(ii)Ms Esbensen was seeking improperly to obtain an Order on behalf of a group of people, rather than just for herself and therefore the application was not brought for a proper purpose.
(iii)The application was not brought in good faith because Ms Esbensen had other options to deal with the Respondent’s conduct.
(iv)Mr Critchley suffers from a mental impairment of intellectual disability and chronic paranoid schizophrenia as described in the reports provided on behalf of Mr Critchley. It was not disputed by counsel for Ms Esbensen that Mr Critchley suffers from a mental impairment. The Judicial Registrar accepted that Mr Critchley suffers from a mental impairment.
(v)Because Mr Critchley’s mental impairment affects his ability to comply with a Personal Safety Intervention Order, and he is unlikely to comply throughout the period of the order, Mr Critchley comes within the exception provided for in Section 62 of the Act.
(vi)The decision of Lacava J was made pursuant to the same legislation and in a virtually identical fact scenario as the Application of Ms Esbensen.
(vii) That whilst the Judicial Registrar was not bound at law to follow the decision of Lacava J, pursuant to the doctrine of precedent, the decision of Lacava J is compelling and unless the facts or law could be distinguished the Judicial Registrar was required to follow the decision of Lacava J unless he became convinced that the decision was wrong.
As noted above, the appellant relied on the decision of Judge Lacava in Critchley v Raftery. In this proceeding, Judge Lacava was hearing an appeal from the Magistrates’ Court at Bendigo, where a Magistrate had made a final intervention order in favour of a local business owner. Judge Lacava set aside the order, largely on the basis that he did not consider that the appellant could comply with the terms of the order.
The appellant’s solicitor referred to the authorities regarding whether the decision of an intermediate court (such as the County Court) is effectively binding upon courts at a lower level of the judicial hierarchy, including Binskin v Kangaroo Transport Pty Ltd,[10] where Maxwell J of the Supreme Court of New South Wales held that a Local Court Magistrate is bound by a decision of the District Court in the same jurisdiction.[11] However, in Valentine v EID,[12] another decision by a single judge of the New South Wales Supreme Court, Grove J stated ‘the doctrine of stare decisis does not apply as between two inferior courts, the District Court and the Local Court, even though the former stands higher in curial gradation’.[13] Rather, the principle of comity applies.
[10](1990) 12 MVR 499.
[11]Ibid, 507.
[12](1992) 27 NSWLR 615.
[13]Ibid, 622.
The appellant’s solicitor submitted that the second respondent had not brought her application in good faith. It was not the intention of the legislation to exclude the appellant from the company of a group of people, (such as the church congregation), rather than to protect an individual from threats of violence. Further, the second respondent could have explored other options, such as arranging for the Uniting Church to provide her with a security guard, but decided not to pursue those other options. He noted that he and other members of ‘Friends of Claude’ had offered to be present at church each Sunday to ensure that the appellant did not engage in disruptive behaviour, but that this offer has been rejected.
Counsel for the second respondent submitted that the appellant could not rely on s 61(2)(b)(ii) of the PSIO Act, as the appellant had been largely able to comply with the interim intervention order for five months prior to the hearing before the Judicial Registrar. Therefore, the appellant should be able to comply with a final intervention order, and the conditions of the proposed order were not so harsh that the appellant would fall into error on a day to day basis.
Counsel for the second respondent submitted that it would be appropriate in all the circumstances of the case to make a final order under s 61(c) of the PSIO Act, to enable the second respondent to attend her workplace without being hampered or threatened by the appellant.
The Judicial Registrar was satisfied that the appellant had engaged in prohibited behaviour which fell within the scope of the PSIO Act (‘prohibited behaviour’) and that the prohibited behaviour would cause a reasonable person to fear for his or her safety, having regard to legislative purpose set out in s 1 of the PSIO Act. The Judicial Registrar accepted that the second respondent was concerned for her personal safety and wellbeing, stating as follows:
...this application is brought by what I consider to be a very brave person who came here, who gave evidence about how this behaviour personally affected her and she was – she was – her voice was starting to waiver [sic] in the witness box.[14]
[14]Transcript, p. 54-55.
The Judicial Registrar noted that in Critchley v Raftery, Judge Lacava recognised that the appellant was not totally incapable of complying with intervention orders, stating that the appellant was not a person who could not comply with intervention orders at all times.[15] The Judicial Registrar also stated that he considered that he was not bound by Judge Lacava’s decision.
[15]Transcript, p. 67.
The Judicial Registrar was of the view that the second respondent should be entitled to the protection of an intervention order. The Judicial Registrar noted that:
As I have indicated before, it is my view that a person in the reverend’s position should be entitled – and I’m starting at the back here and moving forward, but should be entitled to protection against any person notwithstanding that that person may at times be incapable of complying. That person, in my view, should be entitled to protection at the times when that person can comply and we have seen today in the evidence, in the evidence-in-chief of Mr Critchley’s criminal history that on occasions he can comply so it’s not a situation where he’s a person who cannot comply at all times and it is my view that should the evidence, and I’ll go back to that in a moment, support the making of an intervention order it can be made.
The issue about whether or not Mr Critchley should be prosecuted for any possible breach should an order be made, that is a different matter altogether and that’s something where the prosecution agency needs to take into account Mr Critchley’s illness and ultimately the court in deciding whether or not he should be found guilty or not of such a breach.[16]
[16]Transcript, p. 67-68.
The Judicial Registrar concluded as follows:
I then need to jump to the cognitive impairment aspect of it that I’ve basically covered in what I said about Judge Lacava’s decision. Section 61(2)(b) says, ‘If the court is satisfied that the respondent has a cognitive impairment, the respondent’s ability to do the following taking into account his or her cognitive impairment, understand the effect of the final order.’ Mr Baker conceded that he understands the nature and effect of the final order and that the telling point or the most difficult part of this entire case is whether or not due to Mr Critchley’s cognitive impairment whether he could comply with the issues of the final order.
For the reasons I have given as to why I believe I need to follow Judge Lacava’s judgment in all matters of this nature, I am satisfied there are times, significant amount of times where Mr Critchley knows about his need to comply with the orders and indeed can comply with the orders.
I nonetheless concede that there are occasions where he is under stress or for other reasons that cause his inability to comply, there are other occasions where he can’t comply but I don’t believe that that necessarily means that a person in the reverend’s position should not be offered the protection of the court or the protection of an order for other times. [17]
[17]Transcript, p 70.
Accordingly, the Judicial Registrar made a final order under s 61(2) of the PSIO Act, effective for a period of twelve months.
The appellant subsequently sought a review of the decision of Judicial Registrar McCann to grant the intervention order by a magistrate pursuant to s 16K of the Magistrates’ Court Act 1989 (Vic) (‘Magistrates’ Court Act’).
On 26 October 2018, Magistrate Southey determined to refuse the appellant’s application for review without a further hearing. In his reasons for decision accompanying his order refusing the appellant’s request for review, the learned Magistrate stated as follows:
This Court has listened to and considered a recording of the proceedings conducted before Judicial Registrar McCann on 19 October 2018. This Court has also considered the affidavit in support of the request for review, together with the ruling of his honour Judge Lacava delivered 26 June 2014, and the report of Dr Danny Sullivan dated 19 September 2013. In the view of this Court, the learned JR considered the matter very thoroughly, and gave detailed reasons for his ruling. In the view of this court the learned JR did not fall into error; indeed this Court agrees with these reasons. This court emphasises the following points: it is conceded on behalf of the applicant that the learned JR is not bound by the ruling of Judge Lacava. It was conceded on behalf of the applicant during the hearing that he had committed prohibited behaviour within the meaning of the act. It was also conceded that he understands intervention orders, which was the conclusion of Dr Sullivan at para 36 of his report: ‘I consider that Mr Critchley has a basic understanding of the nature and effect of an intervention order’. The fact that, owing to the applicants’ impulsivity, he may on some occasions be unable to comply with the order, does not seem to this court to be a basis for not making an order which is otherwise entirely warranted. The state of evidence appears to be that the applicant does understand the orders, and hence does comply with them for the most part -including the interim order which had been made in this case.
It was argued on his behalf during the hearing that no court would ever imprison him for a breach of an order. Given his deficits, an depending on the seriousness of the breach, that may be so. But that is not to say that the police should not exercise their discretion to prosecute him, and the courts impose some lesser penalty, if he were guilty. And on the evidence, this has already occurred several times.
This court sees no utility in requiring the witnesses to attend court to give evidence again on a hearing de novo, and for the same submissions to be made. The request is refused.
The appellant subsequently appealed to this Court pursuant to s 109 of the Magistrates’ Court Act against both the decision of the Judicial Registrar and the decision of the learned Magistrate. Section 109(1) of the Magistrates’ Court Act provides as follows:
A party to a civil proceeding in the Court may appeal to the Supreme Court, on a question of law, from a final order of the Court in that proceeding.
Given that the intervention order remains in force, this proceeding was listed with priority. For the reasons which follow, the appeal will be dismissed. In short, even if the principle of comity is invoked by reason of the decision of Judge Lacava in Critchley v Raftery, which I doubt given the nature of the proceeding before both Judge Lacava and the Judicial Registrar, the factual circumstances of the application before the learned Magistrate was materially different from those in the application before Judge Lacava. Further, while no other grounds of appeal were pressed, for completeness, no other error of law is discernible from the record of the proceeding below, noting that, even if it was not necessary for the appellant to identify an error of law by reason of the terms of s 109 of the Magistrates’ Court Act, it would be necessary to do so given that the learned Magistrate was exercising a discretionary power, where the ability of the appellant to comply with an intervention order was only one matter for him to take into account when exercising his discretion to grant or not grant a final order under the PSIO Act.
The legislative framework
The PSIO Act repealed and superceded the Stalking Intervention Orders Act 2008 (Vic).
The Explanatory Memorandum accompanying the Personal Safety Intervention Orders Bill 2010 (‘bill’) stated that one of the purposes of the bill was:
to establish a system of protection for those who have experienced prohibited behaviour or stalking from a person other than a member of their family[18]
[18]Explanatory Memorandum, Personal Safety Intervention Orders Bill 2010 (Vic) 1.
This purpose is reflected in s 1 of the PSIO Act, which states that the purpose of the Act is, among other things, to:
protect the safety of victims of assault, sexual assault, harassment, property damage or interference with property, stalking and serious threats
The PSIO Act permits a decision maker to consider whether a respondent has a cognitive impairment, and specifies matters which may be taken into account if the decision‑maker is satisfied that a respondent has such an impairment, being that respondent’s ability to understand the effect of an intervention order, and that respondent’s ability to comply with an intervention order.
Section 61 of the PSIO Act provides 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.
(2)Without limiting subsection (1)(c), in deciding whether it is appropriate to make a final order the court may consider—
(a)if the respondent is a child, the respondent's ability to do the following, taking into account his or her age and maturity—
(i)understand the nature and effect of a final order; and
(ii) comply with the conditions of the final order;
(b)if the court is satisfied that the respondent has a cognitive impairment, the respondent's ability to do the following, taking into account his or her cognitive impairment—
(i) understand the nature and effect of a final order; and
(ii) comply with the conditions of the final order.
The Explanatory Memorandum, when referring to the provision concerning respondents with cognitive impairments, stated relevantly, as follows:
This is because an order will be unworkable if the respondent does not have the ability to understand and comply with their obligations under a personal safety intervention order due to their age or impairment.[19]
[19]Explanatory Memorandum, Personal Safety Intervention Orders Bill 2010 (Vic) 13 and 22 (Clause 35(4) and Clause 61(2)).
When introducing the bill to Parliament, the Attorney-General stated as follows:[20]
Although there are more types of behaviour covered by the bill, the aim is not to make the personal safety intervention orders system apply to more minor behaviour. As I have said, the aim of this bill is to divert non-dangerous behaviour to mediation in appropriate circumstances. Court hearings will be reserved, wherever possible, for serious matters that require court intervention. For this reason, final orders on the grounds of ‘prohibited behaviour’ — that is, assault, sexual assault, harassment, property damage or interference or making a serious threat — will only be made where the respondent’s prohibited behaviour would cause a reasonable person to fear for his or her safety. This will insert an element of objective risk — a person who is afraid, for example, of all people of a certain ethnic background will not be able to obtain an order simply because a person of that ethnic background keeps moving their wheelie bin. The court must agree that the behaviour is objectively frightening.
The court may also refuse to make an interim or a final personal safety intervention order if the court believes that it is not appropriate to make an order in all the circumstances of the case. For example, it may be inappropriate to make an order against a young child if the child is too young or immature to understand and comply with the order. In such cases, the magistrate may decline to make the order even if the grounds are technically made out.
[20]Victoria, Parliamentary Debates, Legislative Assembly, 9 June 2010, 2227-8 (Mr Hulls, Attorney-General).
The inclusion of the word ‘may’ in s 61 of the PSIO Act means that a court has a discretion in deciding whether it is appropriate to grant a final intervention order.
There has been no judicial consideration of the application of s 61 of PSIO Act, save for the decision of Judge Lacava in Critchley v Raftery referred to in paragraph 25 above, and discussed in more detail later in these reasons.
The Notice of Appeal
In his notice of appeal filed 4 December 2018, as amended on 8 March 2019, the appellant identified the following questions of law:
1.Was (a) the Judicial Registrar and (b) the learned Magistrate required to follow the decision of His Honour Judge Lacava made on 26 June 2014 in proceeding number AP132960 in the appeal of Claude Raymond Critchley and Dennis Raftery unless compelling reasons required a departure from that decision?
2.Were there compelling reasons for the Judicial Registrar to depart from the said decision of His Honour Judge Lacava?
3.Did section 61(2)(b) of the Personal Safety Intervention Orders Act 2010 require that the application made to the Judicial Registrar be refused?
The grounds of appeal relied upon by the appellant are as follows:
Ground 1
The learned Magistrate erred in law in holding that the Judicial Registrar did not err in law in failing to follow the decision of His Honour Judge Lacava made in the matter of Claude Critchley and Dennis Raftery No. AP132960 made in the County Court of Victoria on 26 June 2014.
PARTICULARS
(a)The Judicial Registrar refused to follow the decision of Judge Lacava without expressing any reasoned ground for not following that decision.
(b)The learned Magistrate in giving his reasons for not complying with the request for re-hearing endorsed this view, and, while stating that the Judicial Registrar was ‘not bound by the ruling of Judge Lacava’, failed to express any reason to consider that decision erroneous or why, in the interests of comity, it should not be followed.
Ground 2
The learned Magistrate erred in law in the interpretation, or alternatively the operation, which he gave to s 61(2)(b) of the Personal Safety Intervention Orders Act 2010.
PARTICULARS
(a)The learned Judicial Registrar found that there would be times at which the Appellant would be unable to comply with the order, but held the need for protection of the Second Respondent overrode this consideration.
(b)The learned Magistrate endorsed this view, saying that the fact that the Appellant ‘may on some occasions be unable to comply with the order, does not seem to this court to be basis for not making an order which is otherwise warranted.’
(c) In so ruling and thereby endorsing the decision of the Judicial Registrar, the learned Magistrate misinterpreted s. 61(2)(b) of the Personal Safety Intervention Orders Act 2010 or alternatively misconstrued the operation of that provision.
At the hearing of the appeal, senior counsel for the appellant informed the Court that the appellant pressed ground one only (‘the comity issue’).
The appellant seeks the following relief:
1.The order of the learned Magistrate made on 26 October 2018 be set aside.
2.The order of the Judicial Registrar made on 19 October 2018 be set aside.
3.The application for a restraining order made against the Appellant be dismissed.
Preliminary Issues
In her written outline of submissions filed on 9 May 2019, the second respondent submitted that the learned Magistrate’s decision stands in lieu of the Judicial Registrar’s order. Therefore, the Judicial Registrar’s order cannot be the subject of an appeal under s 109 of the Magistrates’ Court Act. This issue was conceded by the appellant in his written submissions filed on 21 May 2019. However, the hearing before the Judicial Registrar, and the Judicial Registrar’s reasons for making the final intervention order are still relevant for the purposes of the current proceeding, given that the learned Magistrate based his decision largely on the evidence before the Judicial Registrar, and expressly approved and adopted the Judicial Registrar’s reasoning.
The second respondent submitted that the appellant’s application was out of time, as the Notice of Appeal was filed on 4 December 2018, and the learned Magistrate’s final order was made on 26 October 2018. The second respondent submitted that the appellant should not be granted leave to appeal out of time, which is only granted in ‘exceptional circumstances’ (see s 109(5) of the Magistrates’ Court Act).
The appellant acknowledged that the appeal was out of time, but submitted that as the appellant’s solicitor erroneously believed that the appeal period commenced running on 5 November 2018 (rather than 26 October 2018), by reason of the date of the notice from the court notifying him of the learned Magistrate’s orders, and that the second respondent would not be prejudiced if an extension of time was granted. Accordingly, leave to appeal out of time ought be granted. The second respondent conceded at the hearing that there was no prejudice to her by reason of the appellant’s delay in lodging the Notice of Appeal.
In his affidavit sworn on 4 June 2019, Mr Baker deposed, in summary, as follows:
(a) he had actively pursued a grant of assistance for the appellant from Victoria Legal Aid prior to issuing this appeal;
(b) obtaining instructions from the appellant was difficult by reason of his impairments; and
(c) the appellant could not have been aware of the order made on 26 October 2018 until 7 November 2018, when Mr Baker collected the certified extract of the learned Magistrate’s order from his pigeonhole at the Bendigo court house.
There was no dispute between the parties regarding the principles applicable to applications for leave to appeal out of time. Certainly, the requirement for there to be ‘exceptional circumstances’ is more onerous than ‘special circumstances’.[21] Here, there are a number of relevant circumstances which, taken in isolation, probably would not amount to exceptional circumstances, but cumulatively justify the grant of leave to appeal. These include:
[21]See Shire of Carnarvon v Klein Corporation Pty Ltd [2008] VSC 24 [35], [43]-[44].
(a) the mistaken (but reasonably held) belief of the solicitor for the appellant that the orders were made on 5 November 2018;[22]
[22]I note that in Lednar v Magistrates’ Court & Anor [2000] VSC 549, Gillard J stated (at [126]) that ‘[I]n my opinion it would be a gross injustice if time were to run against an aggrieved party when he did not know of the existence of the order which he wished to challenge.’ As the order was made by the learned Magistrate in chambers, the solicitor for the appellant was not on any notice as to when the order was made until after he received them.
(b) the efforts made by the solicitor for the appellant to obtain assistance from Victoria Legal Aid;
(c) the potentially harsh consequences for the appellant should he breach the intervention order, such that a hearing on the merits is appropriate;
(d) given the concerns expressed by Judge Lacava in Critchley v Raftery regarding the appropriateness of the use of the criminal justice system to address the behavioural problems of persons with impairments of the nature suffered by the appellant, the appeal raises some public policy issues, and is in any event not hopeless;
(e) the fact that this particular provision s 61(2)(b) of the PSIO Act does not appear to have been considered by this Court and there does not appear to be any case law on an equivalent defence of cognitive impairment in New South Wales. I believe I am entitled to take judicial notice of the significance of this legislation for the welfare, safety and liberty of residents of this state.
Further, the second respondent submitted that the appeal should fail because the question of whether the Judicial Registrar (and by extension, the learned Magistrate) should have accepted and followed Judge Lacava’s finding that the appellant was not capable of complying with an intervention order was not squarely raised below, and, accordingly, should not be entertained by this Court. I disagree. Having reviewed the transcript of the hearing before the Judicial Registrar, and the affidavit sworn by the appellant’s solicitor, in support of the appellant’s application for review by the learned Magistrate, I consider that this issue had been raised with sufficient particularity below.
Issues
Accordingly, leave to appeal having been granted, the issues before the Court are as follows:
(a) is there an established principle of comity which operates to bind, or at least guide, decisions of lower courts in addition to the established doctrine of precedent;
(b) if so, does the principle of comity apply to the current case; and
(c) is the decision of the learned Magistrate otherwise tainted by legal error?
The evidence
The appellant relied on the affidavit of his solicitor, Mr Peter Baker, sworn on 8 March 2019 and the exhibits to that affidavit, which included the evidence before the Judicial Registrar and the learned Magistrate, along with the following documents:
(a) a copy of the final intervention order under the PSIO Act made by the Judicial Registrar on 19 October 2018;
(b) a copy of the appellant’s request for review of the decision of the Judicial Registrar, together with Mr Baker’s supporting affidavit filed 25 October 2018;
(c) the full transcript of the hearing before the Judicial Registrar on 19 October 2018;
(d) a copy of the final order made by the learned Magistrate on 26 October 2018; and
(e) the transcript of the reasons of Judge Lacava in Critchley v Raftery.
Submissions
In relation to the comity issue, senior counsel for the appellant relied on the decision of Grove J of the Supreme Court of New South Wales in Valentine v EID,[23] as follows:
I emphasise that I am not suggesting that a Local Court may not be considerably advantaged by reference to a relevant judgment of the District Court and I would expect that, except on rare occasions, such judgment would be compellingly persuasive and I hold no more than that a binding precedent has not been created. I refer to Lord Goddard's statement of principle in Huddersfield Police Authority that a judge of first instance of the High Court will follow a decision of another judge of first instance, unless he is convinced that that judgment is wrong, as a matter of judicial comity — a principle now extended to apply to divisional courts in Britain: R v Greater Manchester Coroner; Ex parte Tal [1985] 1 QB 81. As comity is required between courts of equal rank, coordinate decision must also exist between the Local Court and District Court and a magistrate should not depart from following any decision of the District Court unless after earnest consideration and for good reason he or she became convinced that the decision was wrong.[24]
[23](1992) 27 NSWLR 615.
[24]Ibid, 622.
The above passage has been cited on a number of occasions as representing the applicable law in Australia.[25]
[25]See Duckworth v Water Corporation [2012] WASC 30 and Eames v Eames [2018] FamCAFC 204.
Senior counsel for the appellant submitted that while, strictly speaking, the learned Magistrate was not bound to follow a decision of a judge in the County Court, the principle of comity provides that the learned Magistrate was required to follow the decision of Judge Lacava in Critchley v Raftery, unless he considered that it was plainly wrong. Neither the Judicial Registrar or the learned Magistrate expressly stated that the decision of Judge Lacava was wrong.
In Critchley v Raftery, the party who sought a final intervention order under the PSIO Act was the director of an insurance company, the business premises of which was located in the Bendigo CBD. The applicant gave evidence that the appellant behaved in ‘an offensive and threatening manner towards female staff and elderly customers’, both inside and outside the business premises.
In his reasons, Judge Lacava considered the history of intervention orders against the appellant, as follows:
The application needs to be seen in a background where the court records, going back to 2009, show that there have been 22 applications for intervention orders against the appellant and there are two applications pending to be heard respectively on 2 July and 14 July of this year. According to the court records, of the 22 applications, many have expired but there are still four current. Further, the archived records of the court, going back to 1997, indicate that there have been 14 other orders taken out.[26]
[26]County Court transcript, p.1.
Analysing the requirements of s 61(2) of the PSIO Act, Judge Lacava observed as follows:
The relevant section [s 61(2) of the PSIO Act] thus provides the court with a discretion and that discretion must be exercised judicially. The act itself is clearly designed to give people protection, but it is a blend of civil law – and by that I mean reference to the civil standard on the balance of probabilities – and the criminal law because it provides for punitive action in the event of breach of the orders made under it.[27]
[27]Ibid, p.3.
Judge Lacava also made the following observations regarding the purpose of s 61(2) of the PSIO Act:
The law has always intended different treatment for those whose actions or conduct is influenced by mental impairment or lack of full mental capacity. An example is the provisions of the Crimes (Mental Impairment and Unfitness to Be Tried) Act...[28]
[28]Ibid, p.4.
Judge Lacava was satisfied that the appellant understood the nature and effect of an intervention order. His Honour then considered whether, having regard to his cognitive impairment, the appellant was able to comply with the conditions of the final intervention order. Referring to the evidence detailing the appellant’s criminal record, his Honour stated as follows:
That raises the question very clearly in my mind as to what is the point of the law imposing an order which the court knows the person to whom it is directed is unlikely to comply. The law has never countenanced a situation where any remedy that it makes is, in effect, a set‑up for the person to whom the order is directed to fail.[29]
[29]Ibid, p 5.
After considering the expert evidence, in particular the report of Dr Sullivan referred to in paragraphs 4 and 5 of these reasons, Judge Lacava concluded that the final intervention order imposed upon the appellant ought be set aside:
I am satisfied that having regard to the expert evidence of Dr Sullivan, that because of the intellectual impairment and schizophrenia of the appellant, his ability to comply with the conditions of a final order is very limited indeed. Indeed, having regard to the number of times he has been punished in the criminal court for breaches of various orders since 2005, it is highly likely in my view that an order such as this with its lengthy definitions in the way that the order refers back to the definitions contained in the act, it is highly unlikely that the appellant will be able to comply with it.[30]
[30]Ibid, p 5.
Senior counsel for the appellant submitted that there was clear inconsistency between Judge Lacava’s decision and the Judicial Registrar’s decision, as affirmed by the learned Magistrate upon review. Although the two decisions determined separate applications made by different applicants for intervention orders, both decision makers considered the appellant’s ability to comply with an intervention order. Judge Lacava decided not to grant an intervention order because he considered that the appellant was unable to comply with an order, while the Judicial Registrar and Magistrate on appeal decided to grant an intervention order on the basis that the second respondent was entitled to the protection of an intervention order, the appellant could comply with an intervention order at times, and the question of whether to prosecute the appellant for a breach of any intervention order was a question for the authorities.
Senior counsel for the appellant submitted that the learned Magistrate did not explain why the application before him was distinguishable from Judge Lacava’s decision in Critchley v Raftery, and on what basis he exercised his discretion to grant an intervention order against a person who is unable to comply with the order.
Senior counsel for the appellant referred to the transcript of the proceeding before the Judicial Registrar, where the Judicial Registrar stated as follows:
In relation to Judge Lacava’s decision and the Judge Lacava is a judge of the County Court, I am a mere judicial registrar, I’ve got to go past magistrates before I even get to that level. One of the things about Judge Lacava’s decision that causes me concern is that then suggesting that these matters are social problems, there doesn’t appear to be any consideration whatsoever for the applicant. I’m sure the judge considered it but in the written judgment it doesn’t appear to me to explain to an applicant what they can do about people doing things that would otherwise warrant an intervention order being made.[31]
[31]Transcript, pp 66-67.
Senior counsel for the appellant submitted that the above passage shows that the Judicial Registrar considered that the decision of Judge Lacava in Critchley v Raftery was wrong, without saying so expressly, or explaining why. Rather, he made a different value judgment. Further, the learned Magistrate, in agreeing with the Judicial Registrar’s conclusions and reasons, also failed to identify a good reason why he should depart from Judge Lacava’s decision in Critchley v Raftery. The learned Magistrate also did not provide clear reasons as to why he considered that Judge Lacava was in error, which he should have done, consistent with the authorities regarding the principle of comity.
In her outline of written submissions, counsel for the second respondent submitted that the learned Magistrate was correct in his interpretation of s 61(2)(b) of the PSIO Act, and that he exercised his discretion appropriately in deciding not to follow the decision of Judge Lacava in Critchley v Raftery. The second respondent noted that the factual findings of the Judicial Registrar, as adopted by the learned Magistrate, were not challenged by the appellant.
The second respondent objected to the appellant’s reliance upon what the second respondent said was outdated medical evidence, as the appellant’s condition might have changed since those reports were prepared. Counsel for the second respondent submitted that no attempt has been made by the appellant to adduce evidence of his current condition. The finding by Judge Lacava in Critchley v Raftery was based on medical reports proximate in time, and his assessment of the behaviour of the appellant at the time. Further, the second respondent submitted that Judge Lacava’s findings were made in a different factual context than the circumstances of the current case. In Critchley v Raftery, the applicant for the intervention order was a business owner of an insurance company who was concerned for the female staff and customers of the business, rather than being particularly concerned for his own safety and wellbeing. In the current case, the second respondent recounted instances of being physically confronted by the appellant on a number of occasions, and she expressly fears for her personal safety in the presence of the appellant.
Counsel for the second respondent submitted that the appellant did not fully develop his argument regarding the principle of comity before the Judicial Registrar. Further, the appellant has conceded that there was no binding precedent for the Magistrate to follow. In the current case, the Judicial Registrar and the learned Magistrate were entitled to make a factual distinction by considering the gravity of the impact of the appellant’s behaviour on the second respondent.
Consideration
Prior to turning to the issues in this appeal, it should be noted that s 61 of the PSIO Act confers upon the relevant decision‑maker a very broad discretion. As such, any appeal against the decision‑maker’s exercise of discretion is governed by the principles in House v The King,[32] as follows:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 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 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.[33]
[32](1936) 55 CLR 499.
[33]Ibid, 504 – 505.
Accordingly, it is notoriously difficult to disturb a decision made in the exercise of a discretion in the absence of specific legal error.
Turning first to the question of whether the principle of comity constrained the learned Magistrate in the exercise of his discretion, I accept that the passage of Valentine v EID[34] extracted at paragraph 66 of these reasons accurately reflects the position in this jurisdiction. That much is apparent from the authorities referred to in the appellant’s written submissions.[35] The issue in this appeal is the application of the principle to the circumstances of the current case.
[34](1992) 27 NSWLR 615.
[35]See the authorities referred to in fn 25.
In my view, the question of whether the principle of comity applies is determined by the proper characterisation of Judge Lacava’s decision. In making his decision to overturn the earlier decision by a difference magistrate to impose an intervention order is favour of a different applicant, Judge Lacava was doing no more than exercising the discretion conferred upon him by s 61 of the PSIO Act in a particular way, having synthesised the relevant considerations before him, including his factual finding that the appellant was not capable of complying with the intervention order at all times. In reaching his decision, his Honour was not construing the terms of the statute, or making any general statement of legal principle. Rather, applying the terms of s 61 of the PSIO Act, he reached a conclusion based upon the evidence before him at the time.
Statements of legal principles made by a superior court, including, if applicable, how a particular statutory provision is to be interpreted, are binding upon inferior courts. The principle of comity is merely an extension of the doctrine of precedent to courts where the relationship between the relevant courts is not directly within the scope of the hierarchical relationships governed by the doctrine of precedent, with the objective of promoting consistency and predictability in judicial decision‑making.[36] However, when one considers the nature of what decisions bind a lower court, or should be followed by a lower court, it cannot be that a lower court is required to make the same finding of fact as a superior court, or to exercise its discretion in the same manner as a superior court, simply because one of the parties to the proceeding heard by a superior court is the same as in the proceeding heard by the inferior court.
[36]Eames v Eames [2018] FamCAFC 204 [29].
In O’Brien Glass Industries Ltd v Pisani & Ors,[37] I referred to the following statement of Windeyer J in Teubner v Humble[38] with respect to the use to which judicial factual findings might be put:
Observations made by judges in the course of deciding issues of fact ought not be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application...[39]
[37][2018] VSC 294.
[38](1963) 108 CLR 491.
[39]Ibid, 503.
The doctrine of precedent, and by extension the principle of comity, is concerned with the binding and/or persuasive character of statements of legal principle is illustrated by the following extract from the decision of the Full Court of the Family Court of Australia in Eames v Eames:[40]
[40][2018] Fam CAFC 204.
It is clear that a court then is obliged to follow decisions of a court to which an appeal lies (Viro v The Queen (1978) 141 CLR 88 at 93).
However, no appeal lay from a decision of a judge of the Federal Magistrates Court of Australia, or lies from a judge of the Federal Circuit Court of Australia, to a single judge of the Family Court of Australia sitting at first instance. Federal Circuit Court judges are therefore not bound to follow first instance Family Court decisions. This is consistent with a number of authorities that have held that an intermediate court of appeal is not bound by a decision of a single judge of the High Court Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651 at 654 and 664; Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 at 218; Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 at 223 – 224; see also Valentine v Eid (1992) 27 NSWLR 615 at 620).
This does not mean that the decision of the Family Court should not have been followed. Judicial comity required that those decisions be followed unless a judge was convinced that they were ‘plainly wrong’. In the context of discussing the principle of comity between intermediate courts of appeal, in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 the High Court said:
Although the considerations applying are somewhat different from those applying in the case of Commonwealth legislation, uniformity of decision in the interpretation of uniform national legislation such as the Law is a sufficiently important consideration to require that an intermediate appellate court – and all the more so a single judge – should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.
(Emphasis added)
A similar principle applies between judges of first instance (La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204; Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [74]-[75]). In Hicks, French J explained the rationale as follows (at [76]):
The injunction to judicial comity does not merely advance mutual politeness as between judges of the same or co‑ordinate jurisdictions. It tends also to uphold the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision‑making and mutual respect between judges. And where questions of law, and statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction.[41]
(Emphasis added)
[41]Ibid [25]-[29].
The decision of Judge Lacava involved the exercise of a discretion, based upon the evidence before him at that time. His exercise of discretion was guided by the plain reading of the terms of s 61 of the PSIO Act. No issues of statutory interpretation arose or were considered by his Honour in reaching his determination that the intervention order should be set aside. The closest his Honour came to a statement of principle was his observation that:
[the application precipitated by the appellant’s conduct] is a social problem which in my view should not be attended by the criminal law.[42]
[42]County Court transcript, p 7.
However, I do not read the above observation as amounting to a statement of legal principle to the effect that people in the unfortunate position of the appellant should not, in any circumstances, be subject to an intervention order. Rather, using the language of senior counsel for the appellant, this statement reflects a value judgment on the part of his Honour, which I assume led him to place greater weight on the characteristics and circumstances of the appellant than to the impact of the appellant’s conduct on the applicant before him. If it were intended as such, in my view, respectfully, having regard to the purpose of the PSIO Act, and the terms of the PSIO Act, such a statement of principle would be incorrect. First, the purpose of the PSIO Act is to protect members of the community from assault and otherwise violent or threatening behaviour. Further, the terms of s 61 of the PSIO Act provide that the personal circumstances and capabilities of those responsible for such behaviours are matters to be taken into account in determining whether to make an order, but are not of themselves determinative.
Similarly, his Honour’s statement that ‘The law has always intended different treatment for those whose actions or conduct is influenced by mental impairment or lack of full mental capacity’,[43] seems to be no more than a commentary regarding the principle underlying the terms of s 61(2)(b) of the PSIO Act.
[43]County Court transcript, p 4.
That Judge Lacava’s ultimate decision to set aside the intervention order in the proceeding is not a ‘decision’ for the purposes of the principle of comity is illustrated by the differences in the circumstances of the case before Judge Lacava and the relevant circumstances in the current case. First, the applicant before Judge Lacava was more concerned with the behaviour of the appellant towards his customers and female staff than for his own personal safety. In the current case, there was ample uncontested evidence that the second respondent has been the subject of rather appalling verbal abuse as well as physical assaults, and is quite fearful of the appellant. In those circumstances, it is unsurprising that the Judicial Registrar and the learned Magistrate gave greater weight to the particular circumstances and apprehensions of the applicant than Judge Lacava did in the matter before him. Further, there was evidence before Judge Lacava that the appellant had more than once engaged in conduct which constituted at least a technical breach of the relevant interim order on occasion: in the current case, there was evidence of only one occasion of conduct which breached the interim intervention order. Finally, there was evidence that the appellant’s conduct seems to be particularly targeted at women, which may well have influenced the Judicial Registrar’s concern for the position of the second respondent.
Having regard to the above, it is unsurprising that neither the Judicial Registrar or the learned Magistrate expressly stated that Judge Lacava’s decision was wrong, although a review of the transcript suggests that the Judicial Registrar disagreed with Judge Lacava’s decision. However, the disagreement was with the outcome, rather than any expression of legal principle on the part of Judge Lacava. First, given that Judge Lacava’s decision was not a decision which ought to have been followed by the reason of the principle of comity, it was not necessary for them to express their views in such terms. Secondly, it is apparent from the transcript of the hearing before the Judicial Registrar that the Judicial Registrar considered that greater weight, at least in the case before him, should be given to an applicant’s need for protection, particularly in circumstances where the appellant does not have ‘a total inability to comply with orders’, than Judge Lacava gave in the case before him. If there was indeed a requirement imposed upon the Judicial Registrar and the learned Magistrate to express why they formed a different view from that of Judge Lacava, that requirement was met.
Accordingly, the learned Magistrate did not err in refusing to vacate the order made by the Judicial Registrar to grant a final intervention order by reason of the principle of comity.
Finally, while no other ground of appeal was pressed at the hearing of the appeal, for completeness I cannot discern any other error on the part of the learned Magistrate in exercising his discretion. The parties were afforded a fulsome hearing before the Judicial Registrar. The appellant, appropriately, did not press his assertion that the learned Magistrate had misconstrued the terms of s 61 of the PSIO Act. It is apparent from the transcript of the hearing before the Judicial Registrar and the reasons of the learned Magistrate that they directed their attention to the relevant considerations prescribed by s 61 of the PSIO Act, including, significantly, the appellant’s ability to comply with intervention orders. I did give some consideration as to whether the observations of both the Judicial Registrar and the learned Magistrate regarding what action might be taken by the police and the courts to enforce the intervention order might amount to them having taken into account an irrelevant consideration, but upon reflection, those observations indicate that both decision‑makers formed the view that the potential leniency (or otherwise) of the authorities was indeed not a relevant consideration to be taken into account in the exercise of their discretion.
Finally, it could not be said that the learned Magistrate’s decision was so unreasonable or unjust such that the discretion conferred by s 61 of the PSIO Act miscarried. Clearly, any decision‑maker presented with a person in the position of the appellant is presented with a difficult situation. The appellant’s behaviour is a result of his impairments and personal history, which are largely outside of his control. However, these considerations need to be balanced against the rights of members of the community to go about their business free from harassment and intimidation. These competing considerations are identified and recognised by the broad discretion given to decision‑makers under s 61 of the PSIO Act, and no error has been demonstrated on the part of the Judicial Registrar and the learned Magistrate in their balancing of these considerations.
Accordingly, I will dismiss the appeal.
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