Fiona Austin v Detective Trent Dwyer & Anor(according to the Schedule attached)
[2021] VSCA 306
•12 November 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0006
| FIONA AUSTIN | Applicant |
| v | |
| DETECTIVE TRENT DWYER & ANOR (according to the Schedule attached) | Respondents |
S EAPCI 2021 0094
| FIONA AUSTIN | Applicant |
| v | |
| OSCAR DOBBS & ORS (according to the Schedule attached) | Respondents |
---
| JUDGES: | BEACH and SIFRIS JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 November 2021 |
| DATE OF JUDGMENT: | 12 November 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 306 |
| JUDGMENT APPEALED FROM: | [2019] VSC 837; [2020] VSC 18 (Forbes J) |
---
ADMINISTRATIVE LAW – Judicial Review – Application for leave to appeal from primary judge’s order dismissing application for judicial review of interim orders made by magistrate pursuant to Personal Safety Intervention Orders Act 2010 – Not reasonably arguable that magistrate made reviewable error – Applicant’s proposed grounds of appeal having no merit – Application for leave to appeal refused.
ADMINISTRATIVE LAW – Judicial Review – Applicant seeking judicial review of County Court judge’s order striking out appeal from magistrate’s order made under Personal Safety Intervention Orders Act 2010 – Proceeding reserved for consideration by Court of Appeal pursuant to s 17B(2) of Supreme Court Act 1986 – Grounds of review having no merit – Judicial review proceeding dismissed.
---
| REPRESENTATION:: | Counsel | Solicitors |
| For the Applicant | Self-represented | |
| For the First Respondent in proceeding S EAPCI 2020 0006 and Third Respondent in proceeding S EAPCI 2021 0094 | Mr D P McCredden | Victorian Government Solicitor |
| For the Second Respondent in proceeding S EAPCI 2020 0006 | No appearance | |
| For the First Respondent in proceeding S EAPCI 2021 0094 | No appearance | |
| For the Second Respondent in proceeding S EAPCI 2021 0094 | No appearance |
BEACH JA
SIFRIS JA:
Introduction
On 26 August 2016, Oscar Dobbs obtained an interim intervention order against his former high school teacher, Fiona Austin. A final order was made on 28 September 2016. These intervention orders, which Ms Austin contends should never have been made, and which have never been the subject of a fully contested evidentiary hearing, have been the genesis of much litigation between Ms Austin, Mr Dobbs, and a police officer, Detective Sergeant Trent Dwyer.[1]
[1]Mr Dwyer is the first respondent in Proceeding S EAPCI 2020 0006 and the third defendant in Proceeding S EAPCI 2021 0094.
On 13 December 2019, this Court,[2] in Austin v Dwyer (‘Austin (CA)’),[3] dismissed six applications for leave to appeal, brought by Ms Austin, against the dismissal of four originating motions filed by her in the Trial Division and costs orders made concerning two of those proceedings.[4] In Austin (CA), the Court noted that there had at that stage been over 50 court hearings or court hearing dates in relation to the interim and final intervention orders made in 2016.[5] Since Austin (CA), there have been a number of further court hearings and hearing dates in relation to these intervention orders.[6]
[2]Constituted by Whelan and Kyrou JJA.
[3][2019] VSCA 296.
[4]On 13 May 2020, the High Court dismissed five applications for special leave to appeal from the orders of this Court: see Austin v Dwyer [2020] HCASL 122.
[5]Austin (CA) [2019] VSCA 296, [2].
[6]Indeed, in an outline of submissions filed by Ms Austin on 22 February 2020, Ms Austin asserted that, as at that date, there had been ‘60 days of court that [she knew] about, involving 41 judicial officers’.
On 6 December 2019, Ms Austin’s fifth judicial review proceeding[7] came on for hearing before Forbes J. In that proceeding,[8] Ms Austin sought judicial review of orders made in the Magistrates’ Court on 14 June 2019. By those orders, O’Callaghan M granted an interim intervention order against Ms Austin, on the application of Mr Dwyer (‘the police intervention order’). The police intervention order named Mr Dobbs as the person protected by the order. O’Callaghan M also refused to deal with a stay application that had been filed by Ms Austin, but not served on Mr Dobbs. While Ms Austin’s fifth originating motion appears to complain about all of the orders made in the Magistrates’ Court on 14 June 2019, in reasons delivered on 20 December 2019 (the ‘First Forbes J Reasons’),[9] her Honour noted that the order revoking the ‘private intervention order’[10] did not form part of the fifth judicial review, but was appealed separately to the County Court,[11] about which we will say more below.
[7]This proceeding was the fifth of the five judicial review proceedings commenced by Ms Austin and referred to in Austin (CA) at [2].
[8]Which had been commenced on 23 July 2019.
[9]Austin v Dwyer [2019] VSC 837.
[10]Being the intervention order obtained on the application of Mr Dobbs, and which was in force immediately prior to the 14 June 2019 hearing.
[11]First Forbes J Reasons, [7].
On 10 February 2020, pursuant to the First Forbes J Reasons and reasons delivered on 6 February 2020 (the ‘Second Forbes J Reasons’),[12] Forbes J made orders dismissing the fifth judicial review proceeding, and ordering Ms Austin to pay Mr Dwyer’s costs of the proceeding. On 11 February 2020, Ms Austin filed an application for leave to appeal from these orders.
[12]Austin v Dwyer [2020] VSC 18.
On 6 November 2019, Ms Austin filed a sixth originating motion, seeking judicial review of an order made in the County Court on 25 October 2019 striking out an appeal from the orders made in the Magistrates’ Court on 14 June 2019. That judicial review proceeding has not yet been heard. As filed, it named Mr Dobbs and the County Court of Victoria as defendants.[13] On 27 November 2019, Clayton JR, over the objection of Ms Austin, made an order joining Mr Dwyer as a third defendant. On 11 December 2019, Ms Austin filed a notice of appeal against this order. On 20 August 2021, Forbes J, at the request of Mr Dwyer, made an order pursuant to s 17B(2) of the Supreme Court Act 1986, reserving the sixth judicial review proceeding for the consideration of this Court (the ‘Third Forbes J Reasons’).[14]
[13]Neither Mr Dobbs nor the County Court of Victoria took an active role in the proceeding.
[14]Austin v Dobbs [2021] VSC 508.
Thus, this Court presently has before it:
(a) Ms Austin’s application for leave to appeal (and, if leave is granted, the appeal) against the orders of Forbes J made on 10 February 2020;[15] and
(b) Ms Austin’s sixth originating motion (including the appeal from Clayton JR against the joinder of Mr Dwyer as a third defendant to that proceeding).[16]
[15]Proceeding S EAPCI 2020 0006.
[16]Proceeding S EAPCI 2021 0094.
At the heart of each of these proceedings is the correctness (or otherwise) of the orders made in the Magistrates’ Court on 14 June 2019. Before dealing with that matter, it is necessary to set out some of the background to this long running dispute. Before doing that, however, it is also necessary to describe the circumstances in which Ms Austin’s proceedings were heard in this Court.
The hearing in this Court
Since March 2020, hearings in the Trial Division in this Court have been affected by the COVID-19 pandemic. On 30 March 2020, a senior registry lawyer in the Common Law Division of the Trial Division emailed the parties in relation to a hearing listed for 23 April 2020. The parties were informed that the Court was not conducting in-person hearings and proposed to proceed by way of a remote video hearing. The parties were asked to advise whether they had the necessary equipment to participate in such a hearing. Ms Austin replied that she did not have the equipment necessary to participate in a remote hearing.
When it came time to fix Ms Austin’s proceedings in this Court for hearing, a Deputy Registrar of the Court endeavoured to accommodate Ms Austin’s lack of equipment by proposing that arrangements be made for her to attend the closest appropriate court to her (the Horsham Magistrates’ Court) so that she could participate in a remote hearing of her proceedings. Ms Austin emphatically rejected that option, instructing the Deputy Registrar not to contact the Horsham Magistrates’ Court.
Subsequently, the Court advised the parties that it would be able to conduct an in-person hearing of Ms Austin’s matters. The date of 5 November 2021 was allocated for the hearing. Ms Austin responded that she would not attend this hearing, to which the Deputy Registrar responded, to all parties:
To be clear, the hearing will proceed on 5 November 2021. If Ms Austin does not appear, the hearing will proceed in her absence.
If Ms Austin wishes to make any submissions about the amount of time allocated for the hearing, she will need to do so orally, at the hearing on 5 November 2021.
Ms Austin’s proceedings came on for hearing before this Court on 5 November last. She did not appear. Having reviewed the history of the various proceedings to which we have already referred, and having noted the extensive written submissions made by the parties in these proceedings, we determined that we should proceed with the hearing — rather than striking Ms Austin’s matters out for want of any appearance by her. It seemed to us that the interests of justice required Ms Austin’s matters to be heard and determined on all of the material filed by the parties, rather than this Court taking a step which might lead to the incurring of further costs and the wasting of further valuable court time.
All of that said, we turn now to consider the merits of the various proceedings now before this Court.
Background
Much of the background to the present dispute is set out in Austin (CA). We will not repeat the matters set out in that judgment. For present purposes, it is sufficient to describe what occurred in the Magistrates’ Court in June 2019, and some of the steps taken, and events which have occurred, in the present proceedings since that time.
On 14 June 2019, O’Callaghan M made three decisions. First, he refused to hear a stay application brought by Ms Austin in relation to case number G12353529, the proceeding in which the then current intervention order had been made on the application of Mr Dobbs (which proceeding is referred to in the First Forbes J Reasons as ‘the private intervention order proceeding’,[17] a label we will adopt in these reasons); secondly, he revoked that intervention order; and thirdly, on the application of Mr Dwyer, in case number K11461342 (‘the second Magistrates’ Court proceeding’), he granted the police intervention order.
[17]First Forbes J Reasons [4].
In the First Forbes J Reasons, her Honour referred to what she called ‘the substitution’ of Mr Dwyer for Mr Dobbs as the applicant for the intervention order as being
based upon the ongoing service of documents for appeal-related hearings on Mr Dobbs’ wife. The police described this as a continuation of the harassment. The substitution would have the effect of the police being able to act on his behalf in future court hearings.[18]
[18]Ibid [3].
Ms Austin’s application for a stay was emailed to the Magistrates’ Court on 11 June 2019. The email attached a summons and affidavit in support seeking that the private intervention order proceeding be stayed. Ms Austin expected that the Magistrates’ Court would serve the summons and her affidavit in support on Mr Dobbs — so much is plain from the first ground set out in her fifth originating motion as follows:
The failure of the Magistrates’ Court of Victoria to serve the stay application as per rule 8.09 of the Magistrates’ Court (Personal Safety Intervention Orders) Rules 2011 (Vic) [(‘PSIO Rules’)] was a jurisdictional error.
On 4 July 2019, Ms Austin lodged a notice of appeal in the County Court in relation to the revocation of the private intervention order. In her notice of appeal, she contended that the revocation ‘was sought and granted for improper purposes’; and that the revocation ‘brings the justice system into disrepute’.
That appeal was, as we have said, struck out on 25 October 2019 when Ms Austin failed to attend a directions hearing after she objected to a request for an adjournment by Mr Dwyer. Other orders were also made on that day, which made provision for what was to occur in the event that Ms Austin sought to re-instate her appeal. We will say more about these below.
The fifth judicial review proceeding was commenced by the filing of the fifth originating motion on 23 July 2019. The fifth originating motion contained nine grounds upon which it was sought to have the orders made in the Magistrates’ Court on 14 June 2019 set aside, and also to have the second Magistrates’ Court proceeding permanently stayed.
THE FIFTH JUDICIAL REVIEW PROCEEDING
As we have already observed, Ms Austin relied upon nine grounds in support of her claim that the orders made in the Magistrates’ Court on 14 June 2019 should be set aside, and that the second Magistrates’ Court proceeding should be permanently stayed. Those grounds were:
1.The failure of the Magistrates’ Court of Victoria to serve the Stay Application as per Rule 8.09 of the [PSIO Rules] was a jurisdictional error.
2.The failure of Magistrate O’Callaghan to exercise the discretion available under rule 14.02 of the [PSIO Rules] to grant, in exceptional circumstances, a stay application without serving the application on any other person, was a jurisdictional error.
3.Magistrate O’Callaghan’s failure, on 14 June 2019, to correctly apply section 94 of the Personal Safety Intervention Orders Act 2010 (Vic) [(‘PSIO Act’)] and rule 6.01 of the [PSIO Rules] when he refused to hear my Stay Application was an error of law on the face of the record.
4.The Magistrates’ Court of Victoria’s denial of my right under section 39 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) [(‘Charter’)] to seek remedy in the form of a stay proceedings, on the ground of unlawfulness, was an error of law on the face of the record.
5.The failure of Magistrate O’Callaghan, on 14 June 2019, to correctly apply the law to the facts when granting an intervention order under section 35 of the [PSIO Act] was an error of law on the face of the record.
6.Magistrate O’Callaghan’s failure, on 14 June 2019, to give me an adequate opportunity to make submissions to the Court was unreasonable and denied me procedural fairness.
7.Magistrate O’Callaghan’s failure, on 14 June 2019, to treat the parties equally was a denial of my right under section 8 of the [Charter] to equality before the law and to equal protection of the law, was a jurisdictional error.
8.Magistrate O’Callaghan’s failure, on 14 June 2019, to conduct the proceedings in a competent, independent, impartial and fair manner, was a denial of my rights under section 24 of the [Charter] and was a jurisdictional error.
9.Magistrate O’Callaghan’s failure, on 14 June 2019, to adequately consider the circumstances of this matter, to adequately consider the abuse of process that led to the intervention order application and to adequately consider the effect the decisions he made on that date would have on the related legal proceedings, was unreasonable and denied me procedural fairness.
First Forbes J Reasons
After setting out matters of background, her Honour turned to the nine grounds of review, saying that they fell into three broad categories:
·grounds 1 to 4 dealing with the magistrate’s failure to deal with Ms Austin’s stay application;
·ground 5 identifying error in the granting of the police intervention order; and
·grounds 6 to 9 dealing with alleged failures to afford procedural fairness and abuse of process.[19]
[19]First Forbes J Reasons [12].
In rejecting Ms Austin’s first ground of review, the judge noted that the rule Ms Austin relied upon related to the service of affidavits on a party who does not have legal representation.[20] The judge concluded that, leaving aside whose responsibility it was to serve the application, the undisputed fact was that the stay application had not been served on Mr Dobbs. Her Honour concluded that the magistrate was correct to decline to hear the stay application on that day, saying that it was Ms Austin’s responsibility to properly file and serve her application.[21] Her Honour also concluded that even if it were the responsibility of the court to serve the affidavit in support of the stay application, the PSIO Rules did not require the court to have done so in the short time available between 11 and 14 June 2019.[22]
[20]Ibid [19].
[21]Ibid [21].
[22]Ibid.
In relation to Ms Austin’s second ground, the judge noted that the rule Ms Austin relied upon, r 14.02 of the PSIO Rules, applied to stay applications made where an appeal against an order had been filed pursuant to s 93 of the PSIO Act. Her Honour said that as Ms Austin had not filed any outstanding appeal under s 93 of the PSIO Act as at June 2019, r 14.02(3) of the PSIO Rules had no application to her, even if she could establish exceptional circumstances.[23]
[23]Ibid [26], noting that her Honour’s reference to r 14.03 in that paragraph of her reasons was plainly a reference to rule 14.02(3).
In relation to Ms Austin’s third ground, the judge held that the section of the PSIO Act (s 94), and the rule,[24] relied upon by Ms Austin did not, by their terms, have application, and were not required to be applied by the magistrate.[25]
[24]Rule 6.01 of the PSIO Rules.
[25]First Forbes J Reasons [27]–[29].
In relation to Ms Austin’s fourth ground, the judge held that Ms Austin’s reliance on s 39 of the Charter was misconceived, because in hearing and determining the applications made to his Honour on 14 June 2019, the magistrate was acting in a judicial capacity, and not in any administrative capacity.[26] In so holding, her Honour noted that the expression ‘public authority’ in s 39 of the Charter is defined in s 4 to specifically exclude a court or tribunal ‘except when it is acting in an administrative capacity’.
[26]Ibid [30]–[33].
The judge noted that in relation to Ms Austin’s fifth ground, Ms Austin submitted that the magistrate wrongly applied s 35 of the PSIO Act in granting the police intervention order. Her Honour also noted that these submissions included a submission that the application was not for an interim order as the relevant box had not been ticked on the form. The judge said, however, that it was confirmed at the hearing before the magistrate, at the outset, that an interim order only was being sought.[27] Her Honour then set out the relevant paragraphs of s 35 of the PSIO Act,[28] before quoting Mr Dwyer’s evidence in support of his application for the police intervention order as follows:
There is a current Interim PSIO where DOBBS is the applicant. This application is being taken out in order to replace the current interim order with a police applicant order, given the ongoing nature of the situation. AUSTIN is the ex-high school teacher of DOBBS, who was terminated from her employment in October 2014 due to inappropriate behaviour towards him. Between October 2014 and December 2016, AUSTIN has led a relentless stalking campaign against DOBBS, through letters/cards delivered to his mother’s address in Western Australia, phone calls & messages, falsified social media accounts, and online blogs. AUSTIN was arrested and remanded in December 2016 after breaching bail and a previous PSIO and remanded into custody for approximately 12 months. Since March 2017, there has been countless court dates in relation to this matter, both criminally and civilly. AUSTIN has listed appeals in the County Court and Supreme Court in her attempts to continue to harass DOBBS. Given the current PSIO is not a police application, Austin has been able to track down and contact DOBBS wife, [name], in order to continuously serve documents for appeal related hearings for which police cannot act or assist DOBBS due to police not being a party to the current application. Police wish to replace the current interim PSIO with this application to better protect DOBBS from the continued harassment by AUSTIN that has continued since 2014. A police application PSIO will better protect DOBBS and allow Victoria Police to act on his behalf at all future court hearings relating to this matter.[29]
[27]Ibid [35].
[28]Ibid [36].
[29]Ibid [37].
After setting out further submissions made by Mr Dwyer and Ms Austin, her Honour concluded that there was no error by the magistrate in his application of s 35 of the PSIO Act.[30]
[30]Ibid [38]–[41].
Next, under the heading ‘Procedural Fairness Grounds’, the judge dealt with grounds 6 to 9. The judge rejected ground 6, concluding that the magistrate had ‘accorded every opportunity for Ms Austin to make submissions’.[31]
[31]Ibid [43].
In relation to ground 7, the judge rejected a submission that a comment made by the magistrate about Kaniva, the town where Ms Austin lives, (‘I am aware of the town of Kaniva, by the way. I know the town of Kaniva and I suspect I know a number of your relations. So I know the place’) was discriminatory in a way prohibited by the Charter.[32]
[32]Ibid [44]–[45].
In relation to ground 8, her Honour rejected Ms Austin’s submission that the magistrate had placed greater weight on Mr Dwyer’s evidence because it was given by a police officer, or that he had held it in the highest regard because it was given by a police officer.[33] Her Honour observed that what Ms Austin relied upon as a quote from the magistrate misstated what the magistrate said in his reasons when he said:
In a court such as this, as an interim applications court, I’m not in a position to give full attention to the factual matters underlying the police case. I must take the police case at its highest. It is an unusual step for the police to take this action and I — in my view I’m bound to put the police case at its highest until its properly tested at a hearing.[34]
[33]Ibid [46]–[48].
[34]Ibid [47].
With respect to ground 9, her Honour rejected submissions made by Ms Austin that the magistrate’s decision was unreasonable, and a submission that there was no factual basis for making a new intervention order on 14 June 2019 as there was ‘no objective risk’ to Mr Dobbs’ safety.[35] As her Honour said:
Ms Austin’s submissions on this ground confuse her own subjective perception of risk with the exercise to be undertaken by the Magistrate. The evidence of Detective Sergeant Dwyer, while contested by Ms Austin, was capable of demonstrating compliance with the matters prescribed by s 35 of the [PSIO Act] and therefore providing an evident and intelligible justification for the order made.[36]
[35]Ibid [49]–[53].
[36]Ibid [51].
In relation to Ms Austin’s application that the second Magistrates’ Court proceeding be permanently stayed, the judge said that she was not persuaded that she had the power to order a stay, but even if she did, she was not persuaded that she should do so.[37] Her Honour then gave three reasons:
First, there is an avenue to seek a stay in the Court where the proceedings are on foot that should be used and such an application has sought to be filed. Second, any stay will have no immediate utility because the private intervention order has been revoked and the police intervention order is adjourned pending the hearing of the criminal charges. Third, the appropriate disposition of both intervention proceedings can be better determined after the criminal charges are dealt with and so it is not presently appropriate to order a permanent stay.[38]
[37]Ibid [56].
[38]Ibid.
Her Honour then concluded the First Forbes J Reasons by saying:
Finally, the grounds for the stay are really the contested factual matters underlying the intervention orders and the length of time that she has been subject to those orders without an opportunity to contest them. I am not able in this proceeding to determine either of those matters on their merits.[39]
[39]Ibid [57].
Proposed grounds of appeal
Ms Austin’s proposed grounds of appeal are as follows:
1.Justice Forbes erred when she misapplied the principles of statutory interpretation. In doing so, she incorrectly concluded Magistrate O’Callaghan had made no jurisdictional error or error of law on the face of the record.
2 Justice Forbes erred in the exercise of her discretion to grant a stay of the intervention order proceedings.
3. Justice Forbes’ judgment is not supported by the facts and evidence.
4.Justice Forbes erred when she did not adequately consider the abuse of process that has occurred in these proceedings. In doing so, she did not give sufficient weight to the consequences and impact these harsh, oppressive, vindictive and badly managed legal proceedings have and are still having on me.
5.Justice Forbes erred when she interpreted section 111 of the [PSIO Act] as not applying to judicial reviews of decisions made under the [PSIO Act]; she erred when she concluded there was no good reason for the applicant to receive a costs order in their favour and she erred in the exercise of her discretion to award costs by making a decision that was unreasonable and plainly unjust.
Ms Austin’s submissions
By proposed ground 1, Ms Austin submits that Forbes J did not correctly interpret the statutory provisions that formed the basis of the judicial review and so incorrectly concluded O’Callaghan M had made no jurisdictional error or error of law. Ms Austin provides two examples, both referred to below, of what she contends were a misapplication of the principles of statutory interpretation.
Ms Austin then submits in respect of proposed ground 2 that the Supreme Court has power to stay proceedings as an abuse of process and there was an ‘obvious’ abuse of process in this case so a stay should have been ordered. The abuse of process pointed to was the police intervention order application. It is submitted that Mr Dwyer wanted control over the intervention order proceedings to ensure he was successful in the criminal proceedings and there was no provision in the PSIO Act which allowed for substitution of intervention orders.
Ms Austin contends by proposed ground 3 that the facts and circumstances do not support the granting of the police intervention order by the Magistrates’ Court and that the judge should have set the order aside. She says that Mr Dwyer and Mr Dobbs have not proved their allegations of stalking behaviour and that there have not been any breaches of any intervention orders against her because there have never been any valid orders of this kind.
Ms Austin argues in support of proposed ground 4 that Forbes J did not adequately consider the abuse of process and did not give sufficient weight to the consequences on her. Ms Austin says that the intervention order issued on 26 August 2016 is not valid, was used as justification to send her to jail without any consideration of the evidence and was the basis for further intervention orders. She says further that for over three years she has been recorded in court databases as a perpetrator of violence and has never had the opportunity to put her case before the court. Ms Austin also alleges various acts of misconduct against judicial officers and the prosecution.
Finally, by proposed ground 5, Ms Austin submits that Forbes J misinterpreted s 111 of the PSIO Act as not applying to judicial reviews of decisions made under the PSIO Act, erred in concluding there was no good reason for making a costs order in Ms Austin’s favour and that the decision to award costs in favour of Mr Dwyer was unreasonable and plainly unjust. As part of her argument on this proposed ground, Ms Austin makes serious and unfounded allegations against Forbes J and Mr Dwyer.
Mr Dwyer’s submissions
Mr Dwyer submits in relation to proposed ground 1 that neither example provided by Ms Austin, as referred to below, discloses any error and although it appears from her written case that Ms Austin takes issue with ‘all’ provisions, she does not identify any other error or statutory provision relevant to the proposed ground.
In response to proposed ground 2, Mr Dwyer says that Forbes J did expressly consider whether or not to exercise her discretion to grant a stay on the assumption that the Court did have power. Mr Dwyer submits that Ms Austin does not identify any error in the exercise of her Honour’s decision to which the principles in House v King apply.
Mr Dwyer submits that proposed ground 3 is misconceived because her Honour was not required nor permitted to make findings about the underlying allegations against Ms Austin. The scope of the review was limited to whether the decision was lawful, which her Honour found it was.
Mr Dwyer contends that the abuse of process contention embraced by proposed ground 4 is not relevant to any of the nine specific grounds of review advanced before, and considered and dismissed, by Forbes J.
In respect of proposed ground 5, Mr Dwyer says that the Court of Appeal has already considered and rejected the construction of s 111 of the PSIO Act in Austin (CA). Mr Dwyer says further that appellate courts are reluctant to grant leave in relation to costs orders and there was no basis for Ms Austin to be awarded her costs as she failed on each of the nine grounds of review. Finally, it is argued, there was nothing erroneous about the decision to award Mr Dwyer his costs as he was wholly successful. Mr Dwyer notes that the various serious allegations made by Ms Austin in relation to Forbes J and Mr Dwyer are entirely without foundation.
Analysis
There is no merit in proposed ground 1 and leave to appeal is refused on this ground.
Although the ground takes issue with all of the statutory provisions referred to by the judge, two instances are specifically referred to. First, it is contended that the legislation does not provide for ‘substitution’ orders. However, it is clear that the intent and effect of the orders made by the magistrate was to revoke the existing private intervention order and grant a new police intervention order for reasons accepted by the magistrate. The use of the word ‘substitution’ by the judge was simply a shorthand way of expressing the effect and consequences of the orders made by the magistrate. No issue of statutory interpretation arises and it has not been established that the magistrate did not have the power to make each of those orders. The revocation of the private intervention order was, as noted, the subject of an appeal to the County Court.
The second instance relates to the contention, rejected by the judge, that the magistrate was obliged to hear and determine all of the contested factual matters on 14 June 2019. Again, this does not involve any issue of statutory interpretation. Although the grant of an interim police intervention order required a proper evidential foundation, it did not require a contested hearing, as explained by the judge. The judge concluded that the magistrate did have a proper evidential foundation for an interim police intervention order and that such order was lawful. There is no error in the judge’s approach or reasons.
There is no merit in proposed ground 2 and leave to appeal is refused on this ground.
The first point to make is that the judge did not decide that she had no power to order a stay. The judge merely expressed a doubt in this regard, but then went on to consider the stay on the assumption that there was power. The decision to reject a stay, for the reasons given, is a discretionary decision attracting the principles of House v The King.[40] Ms Austin has not pointed to any error or irrelevant consideration in the reasons. Further, Ms Austin does not point to any reason as to why the decision is unreasonable or plainly unjust.
[40](1936) 55 CLR 499, 504-5; [1936] HCA 40.
In refusing to grant a stay, the judge said:
Ms Austin has not persuaded me that I have the power to order a stay, but even if I did, I would not be persuaded to do so. Essentially I have come to this conclusion for three reasons. First, there is an avenue to seek a stay in the Court where the proceedings are on foot that should be used and such an application has sought to be filed. Second, any stay will have no immediate utility because the private intervention order has been revoked and the police intervention order is adjourned pending the hearing of the criminal charges. Third, the appropriate disposition of both intervention proceedings can be better determined after the criminal charges are dealt with and so it is not presently appropriate to order a permanent stay.
Finally, the grounds for the stay are really the contested factual matters underlying the intervention orders and the length of time that she has been subject to those orders without an opportunity to contest them. I am not able in this proceeding to determine either of those matters on their merits.[41]
[41]First Forbes Reasons [56]–[57].
The matters referred to by the judge disclose no error of the kind referred to and are indeed persuasive as to why a stay was not appropriate.
In support of proposed ground 3, Ms Austin refers to:
(c) rule 1.14 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Supreme Court Civil Procedure Rules’); and
(d) the judgment of Gageler J in Assistant Commissioner Condon v Pompano Pty Ltd.[42]
[42](2013) 252 CLR 38, 107–8 [186]–[187]; [2013] HCA 7.
Rule 1.14 of the Civil Procedure Rules, however, is not a source of power to order a stay of a proceeding, let alone a stay of a proceeding in another court. Rather, it enables the Court to give directions or to impose terms or conditions in respect of an exercise of another power under the Supreme Court Civil Procedure Rules.
Further, the passage from Assistant Commissioner Condon v Pompano Pty Ltd does not assist Ms Austin. That passage is concerned with the inherent power of a court to stay its own proceedings to avoid an abuse of process, not a power to stay proceedings brought in another forum.
There is no merit in proposed ground 3 and leave to appeal is refused on this ground.
The decision of the magistrate was an interim decision and as pointed out in relation to proposed ground 1, the magistrate needed to be satisfied that there was a proper evidential foundation. The hearing was not a contested hearing. On the evidence, it was open to the magistrate to be satisfied and his decision was lawful, as found by the judge. The interim order was therefore supported by the evidence. The magistrate and the judge referred to the allegations made and the sworn evidence and were clearly aware that a number of allegations were disputed. However, the hearing was not the occasion for identifying or resolving these disputed allegations but merely to assess whether the allegations made, although disputed, had a sufficient evidential basis. They did.
There is no merit in proposed ground 4 and leave to appeal is refused on this ground.
It is unclear how this ground is put. The general and wide ranging complaint about abuse of process was not raised below, other than in the context of the request for a permanent stay. There were several reasons why a permanent stay was not appropriate as explained by the judge. No error has been identified. In addition to paragraphs [56] and [57] cited above, the judge said:
Ms Austin seeks the police intervention order (K11461342) be set aside and the proceeding be permanently stayed. She also asks this Court to stay the proceeding in which the (now revoked) private intervention orders were made although the making of that order was not the subject of this judicial review.
In oral submissions, Ms Austin made clear that in seeking a stay she wanted the intervention orders ‘gone’ or ‘overturned’ . In the absence of any error leading to the setting aside of orders, it would be an unusual step for this Court to intervene in the timing of proceedings in another Court. This is particularly so where an avenue exists to seek a stay of proceedings in the Court where they have been issued.[43]
[43]Ibid [54]–[55].
There is no merit in proposed ground 5 and leave to appeal is refused on this ground.
The making of a costs order is another matter within the broad discretion of the judge. We are satisfied that the discretion has been properly exercised and there is no error in the costs order. The applicant was unsuccessful in the judicial review proceeding. All nine grounds were rejected and there is no reason why, as is the usual course, costs should not follow the event.
Further, the three grounds raised by Ms Austin were raised and rejected in the Austin (CA) decision.
THE SIXTH JUDICIAL REVIEW PROCEEDING
Background
As referred to above, the appeal proceeding in the County Court was an appeal by Ms Austin against an order of the Magistrates’ Court revoking, on the application of Mr Dwyer, the private intervention order made under the PSIO Act. The private intervention order had been revoked by O’Callaghan M on 14 June 2019.
At the same time as revoking the private intervention order, O’Callaghan M granted an interim personal safety intervention order, on the application of Mr Dwyer, against Ms Austin, being the police intervention order. That order was the subject of the unsuccessful judicial review application by Ms Austin, which was dismissed by Forbes J on 20 December 2019 and in respect of which we have refused leave to appeal.
The revocation of the private intervention order, and the grant of the new interim order, were sought by Mr Dwyer so as to substitute, in effect, Mr Dwyer for Mr Dobbs as the applicant for an extant intervention order against Ms Austin in favour of Mr Dobbs.
Ms Austin’s appeal against the magistrate’s decision to revoke the private intervention order was filed on 4 July 2019.
Section 91 of the PSIO Act provides a right of appeal in respect of an order of the Magistrate’s Court made in a proceeding under the Act. An appeal under s 91 is subject to the provisions of sub-div 1, div 11 of the PSIO Act, including that an appeal is to be conducted as a rehearing.
On 10 October 2019, Mr Dwyer’s legal representative sought for the scheduled hearing of Ms Austin’s appeal to be adjourned to a new date. Ms Austin objected to the request for an adjournment.
As the adjournment request was opposed, the County Court scheduled a directions hearing in the proceeding for 25 October 2019, after seeking the availability of Ms Austin and Mr Dwyer. The parties were advised of the date and time for the directions hearing, and that appearances were necessary.
In response to the notice of directions hearing, Ms Austin wrote to the County Court objecting, among other things, to the scheduling of the directions hearing.
Ms Austin did not attend or otherwise appear at the directions hearing conducted on 25 October 2019, and no explanation for her non-attendance was provided. Mr Dwyer’s legal representative appeared on his behalf. Given Ms Austin’s failure to appear, Judge Pillay struck out the appeal proceeding, with an order enabling Ms Austin to apply for reinstatement, if she wished, within 30 days.
Ms Austin did not make any application to reinstate the appeal proceeding. As a result, in accordance with the self-executing order made by Judge Pillay, the appeal proceeding was dismissed at the expiry of the 30 day period.
Ms Austin filed an originating motion for judicial review on 6 November 2019.
On 20 August 2021, at the request of Mr Dwyer, Forbes J ordered that the proceeding be reserved for consideration of the Court of Appeal under s 17B(2) of the Supreme Court Act 1986. Forbes J further ordered that the proceeding be heard together with Ms Austin’s application for leave to appeal (and, if leave was granted, the appeal) against the orders of her Honour made on 10 February 2020 in respect of the fifth judicial review proceeding.
Grounds for review
Ms Austin relies on the following three grounds of review:
1Judge Pillay’s failure, on 25 October 2019, to correctly apply section 49 of the Civil Procedure Act 2010 (Vic) [(‘Civil Procedure Act’)] when he struck out my appeal was an error of law on the face of the record and a jurisdictional error.
2Judge Pillay’s failure, on 25 October 2019, to correctly apply court rules relating to adjournments in Order 46 of the County Court Civil Procedure Rules 2018 (Vic) [(‘County Court Civil Procedure Rules’)] was unreasonable, unjust and denied me procedural fairness.
3Judge Pillay’s failure, on 25 October 2019, to conduct the proceedings in a competent, independent, impartial and fair manner, was a denial of my rights under section 24 of the [Charter] and was a jurisdictional error.
Ms Austin’s submissions
Ms Austin submits by ground 1 that there were no grounds for Judge Pillay to strike out her appeal. She says that her non-attendance at a directions hearing was irrelevant. She argues that Judge Pillay failed to comply with his obligations under ss 7 and 49 of the Civil Procedure Act.
By ground 2, Ms Austin submits that Judge Pillay did not correctly apply the rules relating to adjournments under Order 46 of the County Court Civil Procedure Rules. She says that she was not served with a summons or supporting affidavit in respect of Mr Dwyer’s application for an adjournment. Ms Austin contends the judge’s alleged failure was unreasonable, unjust and denied her procedural fairness.
Ms Austin argued by ground 3 that Judge Pillay did not conduct the proceedings in a competent, independent, impartial and fair manner, and thereby denied her rights under s 24 of the Charter.
Mr Dwyer’s submissions
Mr Dwyer submits that ground 1 must fail because by s 4(2)(b) of the Civil Procedure Act, that Act expressly does not apply to proceedings under the PSIO Act and the appeal proceeding before Judge Pillay was such a proceeding.
Mr Dwyer submits in respect of ground 2 that it was not necessary for the application to be made by summons or supported by affidavit. Mr Dwyer says that the application was made in accordance with the Country Court Civil Procedure Rules and relevant practice notes which permitted application by written email to the Court. Further, Mr Dwyer argues that even if those documents were required, their absence did not give rise to any jurisdictional error. It is also submitted that Ms Austin was on notice, had indicated her refusal to accept the scheduling and that she would not attend, she clearly understood the reason for the directions hearing and provided no explanation for her non-attendance.
In response to ground 3, Mr Dwyer says that the matters alleged in Ms Austin’s submissions are misconceived and without foundation. Some paragraphs in particular, are argued to contain scandalous allegations directed at the judge, Mr Dwyer and his legal representative and should be struck out. Mr Dwyer submits Ms Austin’s belief that he had no right to be heard on the appeal were misconceived and the judge had power to make the decisions that he did.
Analysis
There is no merit in ground 1. The Civil Procedure Act does not apply to proceedings under the PSIO Act.
There is no merit in ground 2. There was no specific requirement for the adjournment application to be made by summons and affidavit. In any event Ms Austin was aware of the adjourned date and advised that she would not attend. No explanation was given and there was no procedural unfairness.
There is no merit in ground 3. The judge was entitled, in the exercise of his broad discretion on a matter of practice and procedure, to strike out the proceeding in the circumstances. The judge had the power to make the order which was entirely appropriate. The Charter has no application. There is no unfairness or prejudice to Ms Austin. The strike out was not a final determination of the appeal. Ms Austin was given the opportunity to apply for the re-instatement of the appeal within 30 days. She did not do so. She could also have applied to set the order aside but did not do so.
Finally, it is of the first importance to note that judges have a broad discretion in relation to matters of practice and procedure. This Court will not lightly interfere with such decisions. They are made not only for the benefit of the parties but also other parties waiting to be heard. The proper and effective administration of the civil justice system depends on judges and other court officers keeping control over the timetabling and progress of matters as they work through the system to a final hearing. Adjournments, where necessary and striking out proceedings where appropriate, are all part of the process and within power. Ms Austin does not point to any error in the exercise of the judge’s discretion.
The originating motion will be dismissed.
APPEAL FROM JUDICIAL REGISTRAR
Judicial Registrar’s decision
While the sixth judicial review proceeding will be dismissed for the reasons given above, we should for the sake of completeness deal with Ms Austin’s appeal against the order made by Clayton JR joining Mr Dwyer as a party to that proceeding. As referred to above, on 27 November 2019, Clayton JR made orders adding Mr Dwyer as third defendant to the sixth judicial review proceeding commenced by Ms Austin on 6 November 2019.
Amongst ‘other matters’ on the orders, the judicial registrar recorded the following:
H.The plaintiff opposed the hearing of the application and opposed the application. She submitted that any such application should be made on summons with an affidavit in support and she be given time to review those materials and prepare her response. She submitted that the police had a conflict of interest and ought not be joined as a third defendant.
I.The Court had notified the proposed third defendant of the directions hearing as it had identified that the proposed third defendant may have an interest in the proceeding. I am satisfied that the plaintiff had considered the proposed third defendant’s likely interest in this case as she had addressed this matter in her affidavit of 6 November 2019.
J.In the circumstances and having regard to the obligations of parties and the Court under the [Civil Procedure Act] I am satisfied that it is appropriate to dispense with a summons and pursuant to rule 9.07 of the [Supreme Court Civil Procedure Rules] dispense with the need for the proposed third defendant to file an affidavit showing his interest in the questions in the proceeding. That interest is evident from the facts of the case and the nature of the plaintiff’s application for judicial review.
K.The proposed third defendant is a person, pursuant to Rule 9.06 of the [Supreme Court Civil Procedure Rules], who ought to have been joined as a party and whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon.
Proposed grounds of appeal
Ms Austin’s proposed grounds of appeal are:
1.The Judicial Registrar failed to take into account relevant considerations when making her decision.
2.The decision does not ‘facilitate the just, efficient, timely and cost-effective resolution’ of a dispute as per section 7(1) of the [Civil Procedure Act] and is therefore unlawful.
3.The manner in which the decision was made was an abuse of process and denied me procedural fairness.
4.The adding of Detective Trent Dwyer as a party is not ‘necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon’ as per rule 9.06 of the [Supreme Court Civil Procedure Rules] and is therefore a jurisdictional error.
No written case or other submissions have been filed on behalf of Ms Austin or Mr Dwyer.
Analysis
Although appeal against Clayton JR’s order joining Mr Dwyer has not progressed beyond the filing of a notice of appeal,[44] we propose to dismiss the appeal. It is entirely without merit.
[44]The Notice of Appeal from the Judicial Registrar dated 11 December 2019, seek to appeal to a judge of the Supreme Court. However, on 20 August, Forbes J reserved the whole of the proceeding (S ECI 2019 5218) to the Court of Appeal. The decision of the Judicial Registrar was made within the proceeding.
It is self-evident that Mr Dwyer is a relevant and necessary party. There was no procedural unfairness, abuse of process, or error of any other kind involved in the joinder of Mr Dwyer.
The application will be dismissed.
Disposition
Ms Austin’s application dated 11 February 2020 for leave to appeal against the orders of Forbes J made on 10 February 2020 is refused.
Ms Austin’s sixth originating motion dated 6 November 2019 is dismissed.
Ms Austin’s appeal against the orders of Clayton JR made on 27 November 2019 is dismissed.
Mr Dwyer does not seek his costs of the proceedings. Accordingly, there will be no order as to costs.
–––
SCHEDULE OF PARTIES
S EAPCI 2020 0006
| FIONA AUSTIN | Applicant |
| and | |
| DETECTIVE TRENT DWYER | First Respondent |
| MAGISTRATES’ COURT OF VICTORIA | Second Respondent |
S EAPCI 2021 0094
| FIONA AUSTIN | Applicant |
| and | |
| OSCAR DOBBS | First Respondent |
| COUNTY COURT OF VICTORIA | Second Respondent |
| DETECTIVE TRENT DWYER | Third Respondent |
4
6
0