Hunt v Cupples
[2023] VCC 2370
•21 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
APPEALS AND POST SENTENCE APPLICATIONS LIST
Case No. AP-23-0302
| HUNT, Simon | Appellant |
| v | |
| CUPPLES, Michelle | Respondent |
| and | |
| RANKIN, Georgette | Respondent |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 December 2023 | |
DATE OF JUDGMENT: | 21 December 2023 | |
CASE MAY BE CITED AS: | Hunt v Cupples & Anor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2370 | |
REASONS FOR JUDGMENT
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Subject:APPEAL – PERSONAL SAFETY INTERVENTION ORDER APPEAL
Catchwords: Appeal – legal, factual or discretionary error – error of law – procedural fairness – whether application for rehearing remedied breach of procedural fairness – exceptional circumstances – order of learned Magistrate set aside – relevant principles
Legislation Cited: Personal Safety Intervention Orders Act 2010; Magistrates’ Court (Personal Safety Intervention Order) Rules 2011
Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13
Minister for Immigration and Border Protection v SZMTA (2018) 264 CLR
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 490
Nathanson v Minister for Home Affairs [2022] HCA 26
Judgment: Appeal granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | - |
| For the Respondent (Michelle Cupples) | W Henwood | Tait Lawyers |
| For the Respondent (Georgette Rankin) | A Tropea | Specialist Advocacy Unit, Victoria Police |
HER HONOUR:
1This is an appeal by Mr Simon Hunt against an order of the Magistrates’ Court of Victoria (“Magistrates’ Court”) made 2 March 2023 under the Personal Safety Intervention Orders Act 2010 (“PSIOA”).
2The affected persons are Michelle Cupples and her son Ryan Pratt. The order from which Mr Hunt appeals requires Mr Hunt not to:
(a) stalk the protected persons;
(b) commit prohibited behaviour towards the protected persons;
(c) attempt to locate the protected persons or keep them under surveillance;
(d) publish on the internet, by email or other electronic communication any material about the protected persons;
(e) contact or communicate with a protected person by any means;
(f) approach or remain within 5 metres of a protected person;
(g) go to or remain within [the address] or any other place where a protected person lives, works or attends school except as authorised by Martin Hunt in writing following Martin Hunt’s consultation with the first named protected person; and
(h) get another person to do anything the respondent must not do under this order.
Background to intervention order
3Ms Cupples is the full-time live-in carer for Mr Hunt’s mother. Mr Hunt’s mother is 93, unwell and suffering from dementia.
4Ms Cupples gave a statement to Senior Constable Georgette Rankin on 29 September 2022.[1] In that statement, Ms Cupples says that she feels unsafe on the property when Mr Hunt is there, does not feel safe to step outside her unit and is scared that he will enter her unit during the night.
[1]Affidavit of Joshua Coy dated 5 December 2023, pages 4-7
5On 27 January 2023, she obtained an interim Personal Safety Intervention Order (“PSIVO”). Under the conditions of that intervention order, Mr Hunt was not to access the property where his mother lives except between 1pm and 4pm on Monday, Wednesday and Saturday. At those times Ms Cupples was required to remove herself from the property. Mr Hunt was required to take a COVID-19 RAT test prior to entering the premises to see his mother.
Final hearing
6Mr Hunt was not present at the hearing on 2 March 2023 when the final order was made. On 10 March 2023, his application for rehearing was heard and refused.
Mr Hunt’s Evidence
7On 20 September 2023, Mr Hunt filed an affidavit attaching two exhibits. The first exhibit is an email he sent to “Lisa” at “Ballarat IVO” on 23 February 2023.[2] In that email he said “I have a hearing set down for 3 March 2023 which I need to adjourn for the reasons set out below”. He then detailed his reasons and concluded:
“I will need time to seek advice before I defend myself from what I believe to be abuse of legal process by my brother, the elder abuse of my mother and the unfair and unkind attitude of Magistrate Bolte.
Accordingly I won’t be able to appear in court to address all these issues on the 3rd of March 2023.
[2]Affidavit of Simon Hunt dated 20 September 2023, pages 2-3
Please adjourn this case to a later date”.[3]
[3](Ibid)
8He included his telephone number.
9The second exhibit to the affidavit of 20 September 2023 is an email from Cassandra Lemasson dated 23 February 2023 to Mr Hunt.[4] She wrote:
“Good Afternoon.
Thank you for advising.
Your email will be placed on file for the Magistrate to consider”.[5]
[4]Affidavit of Simon Hunt dated 20 September 2023, page 4
[5](Ibid)
10As he had not heard anything in reply, Mr Hunt called the Magistrates’ Court after lunch on 2 March 2023 to enquire whether his case was going ahead, despite his request for an adjournment. He was told the case would be going ahead as nothing had been heard from the judge. He says he was not told the case had already been heard.
11On the afternoon of 2 March 2023, he received an email from his brother, Mr Martin Hunt, attaching the order. He says he did not realise it was the final order.
12On 3 March 2023, he attended Court at about 9.30am and was told that the case had been dealt with the day before and a final order had been made.
13He says it was always his intention to contest final orders being made, and it was always his intention to appear at the hearing. He wanted to adjourn the case to obtain legal advice, but, if the adjournment was not granted, intended to appear and represent himself.
14He says he had attended all the hearings in the Magistrates’ Court before 2 March 2023.
Grounds of Appeal
15On 16 March 2023, he filed this appeal. In the Notice of Appeal he filed in the Magistrates’ Court, he identified the order he sought to appeal as the order made 10 March 2023. This was the order refusing his application for rehearing. However the order he attached to that Notice was the order of 2 March 2023. At the hearing of the appeal, he said he was appealing both the final order made 2 March 2023 and the refusal of the application for rehearing on 10 March 2023.
16In the Notice of Appeal Mr Hunt says:
“The case was heard with[out] me present due to me muddling up the dates. Correspondence with the court identified the mistake prior to the ab[s]entia hearing. This was not acknowledged. I want to defend myself against the allegations which are contrived (sic)”.[6]
[6]Notice of Appeal, page 1
17On 30 November 2023, Judge Robertson of this Court made orders that Mr Hunt must file and serve:
(a) a statement of grounds of appeal identifying the legal, factual or discretionary error in the Magistrates’ Court decision of 2 March 2023;
(b) submissions in relation to the legal, factual or discretionary error and the question of the County Court jurisdiction to hear and determine the appeal;
(c) should the appellant seek to rely on any evidence to support the submissions in order 2(b) the appellant must file an affidavit, exhibiting any documents referred thereto, outlining:
(i)any evidence that was relied on in the Magistrates’ Court proceeding that the appellant will seek leave to rely on at the preliminary hearing; and
(ii)any new or fresh evidence that the appellant will seek leave to rely upon at the preliminary hearing.
(d) submissions as to the basis on which the Court should admit any proposed new/fresh evidence sought to be relied upon by appellant.
18By email dated 4 December 2023, Mr Hunt provided to the Court and the respondent a document called “Statement”. This appears to be both his statement of the grounds of his appeal and his submissions.
19I understand Mr Hunt’s grounds of appeal to be that he was denied procedural fairness which amounts to an error of law.
Mr Hunt’s submissions
20Mr Hunt says the Magistrate was in error by going ahead with the hearing in circumstances where he knew that Mr Hunt wanted to be heard.
21He says counsel for the respondent made untested, false and misleading allegations, including that the interim arrangements were not working and that Mr Hunt had breached the agreed conditions. There was no evidence about alleged breaches of the interim arrangements before the Magistrate.
22He says the Magistrate was in error by making final orders that significantly changed the terms of the intervention order without any notice to Mr Hunt of the change, and without providing any opportunity to Mr Hunt to be heard on the change.
The respondent’s submissions
23The respondent says the Court’s jurisdiction is not enlivened and therefore the appeal must be dismissed.
24The respondent relies on an affidavit of Detective Sergeant Joshua Coy made 5 December 2023, to which is exhibited a statement made by one of the protected persons, Michelle Cupples, and transcript from the Magistrates’ Court hearings on 2 and 10 March 2023.
25The respondent also relied on written submissions which addressed grounds of appeal. The written submissions addressed some grounds that were not relied on by the appellant, and which I will not detail here.
Error of Law
26The respondent says there was no legal error because:
(a) Section 61 of the Personal Safety Intervention Order Act 2010 (“PSIOA”) provides the Court has power to make a final order;
(i)Rule 10.03 of the Magistrates’ Court (Personal Safety Intervention Order) Rules 2011 provides that, where a party is absent from a hearing, the Court may proceed with the hearing; or
(ii)strike out or dismiss the application; or
(iii)adjourn the hearing;
(iv)or make any orders which the court considers appropriate.
(b) Therefore the Magistrate had power to make a final order and power to proceed with the hearing in the absence of the appellant. The Magistrate’s decision to proceed with the hearing and refuse the request for adjournment was not a legal error. He considered the appellant’s email and balanced the appellant’s request with the protracted history of the matter. It was open to the Magistrate to proceed with the hearing.
27The respondent says the purpose of the PSIOA is to protect victims. It was open to the court to decide that refusing the adjournment served that purpose and provided the victims with finality of proceedings.
28There was no error of law by reason of the variation of the exclusion condition because the PSIOA provides at s67(1) that the Court may include any conditions that appear to the Court necessary or desirable in the circumstances.
29The respondent says there was no denial of procedural fairness as the appellant had been present in court when the date for the final hearing was set, had received written confirmation of the orders, had not checked the date because of his own choice not to look at the email sent by the Court. The respondent submits that the onus is not on the Court to make sure the appellant had correctly remembered the date, but on the appellant to inform himself of the date he is required to attend court.
30Counsel for the protected person submitted that the intention of the legislation is to afford protection to vulnerable persons. It is unfair to require the protected person to attend a further hearing to give evidence in circumstances where there was no fault by her or the police. The fault rests with Mr Hunt, who did not attend the hearing.
31The Court cannot be satisfied that, even if there was a denial of procedural fairness, the outcome would have been any different if Mr Hunt had attended. The allegations are serious and there is overwhelming evidence supporting the final orders made by the Magistrate.
Discretionary error
32The respondent says there was no discretionary error and that the decision by the Magistrate to not exercise his discretion to grant the appellant an adjournment was not in error. The proceeding had been on foot for 7 months, providing the appellant sufficient time to obtain legal advice or representation.
33There is no evidence that the Magistrate considered any irrelevant or incorrect matters. His decision cannot be said to be plainly unjust or substantially wrong.
34Mr Hunt did not receive any confirmation that his adjournment was granted or that his appearance was not required. He was only told that his request for an adjournment would be considered by the Magistrate. In the absence of being excused from attending, he should have attended court.
35The Magistrates’ decision to amend the exclusion conditions was not unreasonable or plainly unjust, and “expands the amount of time the appellant can spend with his mother”.[7]
[7]Outline of Respondent’s Submissions at page 5, paragraph [20]
The legal framework
36Section 96 of the Act provides:
“(1) The appeal is by way of a rehearing by the County Court or the Supreme Court.
(2) On appeal, the County Court or Supreme Court may –
(a) confirm the relevant decision; or
(b) set aside the relevant decision; or
(c) vary the relevant decision and make any other order the Magistrates’ Court…could have made and exercise any other powers that the Magistrates’ Court…may have exercised;
…”
37In AAA v County Court of Victoria & Ors (“AAA”),[8] his Honour Justice John Dixon observed that the appellant must be able to demonstrate that the original decision maker made a legal, factual or discretionary error, to enliven the power of the appeal court.[9]
[8] [2023] VSC 13
[9] (Ibid) at paragraph [50]
38Such an error may be proved after an examination of the transcript of the Magistrates’ Court proceedings, to examine the conduct of the proceeding and any reasons for the decision made.
39It is well established that a failure to afford procedural fairness to a party to a dispute will involve an error of law, indeed, a jurisdictional error, if that failure could have materially affected the tribunal’s decision.
40In Nathanson v Minister for Home Affairs,[10] Kiefel CJ, Keane and Gleeson JJ, observed:
“There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration…a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case…[the Court] does not require demonstration of how that party might have taken advantage of that lost opportunity…To the contrary…[the Court] proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.”
[10] [2022] HCA 26
41In this case, Mr Hunt must show that he was denied procedural fairness and, had he been afforded procedural fairness, there was a realistic possibility of producing a favourable outcome in the proceeding.[11]
[11]Minister for Immigration and Border Protection v SZMTA (2018) 264 CLR at 421, 433 at paragraph [2], 445 at paragraphs [45]-[46] (per Bell, Gageler and Keane JJ); MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 490 at paragraph [2] (per Kiefel Keane and Gleeson JJ), at paragraph [85] (per Gordon J)
Findings on the facts
42I make the following findings of fact: The facts of this case demonstrate that:
(a) Mr Hunt was in court when the order setting the contested hearing date for 2 March 2023 was made.
(b) He mistakenly remembered the listed date as 3 March 2023. I accept his evidence about this mistake because it accords with the evidence:
(i)He had attended all the other hearings in the Magistrates’ Court;
(ii)He twice put the date 3 March 2023 in his email seeking an adjournment. That email was written on 23 February 2023 and there is no reason why he would have deliberately put in the incorrect date at that time;
(iii)He rang the court on 2 March 2023 asking whether the hearing was going ahead on 3 March 2023 and was told that, as there had been no response from the Magistrate about any adjournment, it would be proceeding;
(iv)He attended court on 3 March 2023.
(c) The Court was aware of Mr Hunt’s error about the listed date on 23 February 2023 when it received the email.
(d) The Magistrate was aware of both the adjournment application and the mistake about the listed date on 2 March 2023 because he read out parts of the email in court including the sentences “I have a hearing set down for 3 March 2023” and “I won’t be able to appear in court to address all these issues on 3 March. Please adjourn the case to a later date”.[12]
(e) The Magistrate determined not to grant the adjournment application, on the basis of the “extensive history of this matter”.[13]
(f) Mr Hunt had indicated his intention and desire to be heard at the final hearing in his email of 23 February 2023.
(g) Mr Hunt had not indicated an intention not to attend if his adjournment application was not successful.
[12]Transcript of 2 March 2023 hearing at T1, L32-34
[13]Transcript at 2 March 2023 hearing at T2, L2
43Notwithstanding that it was or should have been apparent to the Magistrate that Mr Hunt was wrong about the date of the hearing, and that Mr Hunt wanted to be heard at the hearing, and contested the basis for the intervention order, the hearing proceeded in his absence.
Was there an error of law?
44The Magistrates’ Court is a particularly busy court and no doubt there are many occasions where a party does not attend a hearing for a range of reasons. The Court must be able to get on with its work and ensure that the intention of the legislation – to provide protection to vulnerable persons – are met.
45However in the unusual circumstances of this case, where an honest mistake about the date was made, that mistake was known by the Magistrate, and that mistake resulted in the appellant not being given an opportunity to be heard on the final orders where those final orders did not reflect the interim orders, I am satisfied that there has been a denial of procedural fairness that amounts to an error of law.
46I am satisfied that the evidence and submissions Mr Hunt would have made at the final hearing, had he been given an opportunity to do so, could have altered the outcome of the final hearing and that outcome could have been more favourable to Mr Hunt.
47Further, the final order made by the Magistrate varied the conditions of the interim order.
48That variation was made in the absence of any evidence put before the Court that Mr Hunt had not been complying with the conditions of the interim order.
49I do not accept the submission that the variation on conditions represented a less restrictive regime. Instead of having set times and days to visit his mother, Mr Hunt is now excluded from seeing his mother at the premises, without the written consent of his brother. There is no requirement in the order that the brother provide such written consent. Whether, as a matter of fact, Martin Hunt has or would provide consent, or provide more access than that available under the interim order, is not a finding I can make on the evidence before me. However having to obtain permission from his brother is, in my view, a more restrictive condition than having set visiting times.
50In any event, even if the variation could operate in a less restrictive way, as submitted by the respondent, Mr Hunt was entitled to an opportunity to be heard on the change in conditions. I am satisfied that the evidence and submissions Mr Hunt would have made, had he been given the opportunity to do so, would be material to the Magistrate’s decision and could have resulted in a different and more favourable order.
51Accordingly, I am satisfied that Mr Hunt was denied procedural fairness and that this amounted to an error of law.
Did the rehearing remedy the breach of procedural fairness?
52Pursuant to s99 of the PSIOA, the respondent to a final order may apply for a rehearing only if:
“(a) The application for the order
(i) was not personally served on the respondent; and
(ii) was not brought to the respondent’s attention under an order for substituted service; or
(b) there are exceptional circumstances and a rehearing is fair and just in all the circumstances.
…”
53A denial of procedural fairness may be cured by a rehearing where procedural fairness is afforded.
54In this case Mr Hunt applied for a rehearing but was refused on the basis that the Magistrate was not satisfied that he had established “exceptional circumstances” as required by the PSIOA.
55Arguably, the denial of procedural fairness would be an exceptional circumstance that would enliven the Court’s jurisdiction to grant a rehearing. In any event, the procedural unfairness was not remedied by a rehearing and therefore has not been cured.
Orders
56Given my findings, I am satisfied that the decision by the Magistrate to make the final intervention order was attended by an error of law, being a failure to afford procedural fairness to Mr Hunt on 2 March 2023.
57Accordingly, I am satisfied that the appeal ought to be granted and the orders made on 2 March 2023 ought to be set aside.
58As a result of setting aside the final order of 2 March 2023, the Interim PSIVO made on 27 January 2023 remains operative until the further order of the Magistrates’ Court of Victoria.
59I direct that the Registrar of the County Court of Victoria notify the Registrar of the Magistrates’ Court of Victoria of the outcome of this appeal. I also direct that a copy of these reasons be provided to the Registrar of the Magistrates’ Court of Victoria.
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