Kyriazis v Horton-Crundall
[2021] VSC 196
•22 April 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 00624
| VASILIOS KYRIAZIS | Plaintiff |
| v | |
| JOHN HORTON-CRUNDALL | First Defendant |
| MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 April 2021 |
DATE OF JUDGMENT: | 22 April 2021 |
CASE MAY BE CITED AS: | Kyriazis v Horton-Crundall |
MEDIUM NEUTRAL CITATION: | [2021] VSC 196 |
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ADMINISTRATIVE LAW – Judicial review – Magistrates’ Court of Victoria decision in intervention order proceeding – Where certified extract incorrectly records Magistrate’s orders – Where decision to refuse application for an interim order was only decision reasonably open – Where plaintiff stated he did not seek interim order – Discretion to quash interim order decision not exercised – No denial of procedural fairness – Unnecessary to decide whether reasons sufficient – Application dismissed with liberty to apply.
PRACTICE & PROCEDURE – First defendant’s summons for dismissal for want of prosecution – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Self-represented litigant | |
| For the First Defendant | Mr J Stoller | Victorian Government Solicitor’s Office |
TABLE OF CONTENTS
A. Background................................................................................................................................... 1
B. The application before the Magistrate was only for an interim order and case number K13185787 remains on foot......................................................................................................... 2
C. The appropriateness of commencing proceedings for judicial review............................. 4
D.. The decision to refuse the application for an interim order was the only decision reasonably open................................................................................................................................................ 5
E. Ground 2 — Procedural Fairness.............................................................................................. 7
F. Ground 3 — Reasons................................................................................................................... 8
G. Mr Horton-Crundall’s summons.............................................................................................. 8
H. Conclusions................................................................................................................................. 10
I. . Final Comments......................................................................................................................... 10
HIS HONOUR:
A. Background
On 15 November 2019, Mr Kyriazis attended at the Supreme Court and interacted with Mr Horton-Crundall, who was a protective services officer (‘PSO’) working there. Mr Kyriazis and Mr Horton-Crundall had had other interactions in the past.
On 11 December 2019, Mr Kyriazis attended at the Melbourne Magistrates’ Court with the intention of commencing a proceeding under the Personal Safety Intervention Orders Act 2010 (‘PSIO Act’) for an intervention order against Mr Horton-Crundall. Proceedings under the PSIO Act are commenced in an unusual fashion: an applicant provides information to the registry in the Magistrates’ Court, and the registry then prepares and serves the initiating process. The initiating process was headed ‘application and summons for an intervention order’.[1] This document contained a direction to Mr Horton-Crundall that he go the Melbourne Magistrates’ Court on 11 December 2019, that is, that same day. When, in the course of drawing up the initiating process, the registry asked Mr Kyriazis for further details, Mr Kyriazis told the registry that further details would be contained in an affidavit that, by clear implication, would be prepared later. Mr Kyriazis also told the registry that he wished to have a date for the filing of subpoena material. The registry completed the originating process, the proceeding was given case number K13185787, and the registry told Mr Kyriazis, among other things, that the Magistrate would give him a new court date.
[1]Cf Personal Safety Intervention Orders Act 2010 (Vic) s 19.
Mr Kyriazis went before the Magistrate later that same day. By this stage, the originating process had not yet, of course, been served, and Mr Horton-Crundall did not appear. Mr Kyriazis gave evidence from the witness box and otherwise engaged with the Magistrate. At the end, the Magistrate stated:
This is an application for an interim intervention order against a protective services officer… I’ve heard evidence from the applicant and also read his application. In my view, there’s little merit in the application itself. The application will be refused.
The certified extract from the Magistrates’ Court certifies that the entry made in the register in case number K13185787 on that day was:
PERSONAL SAFETY APPLICATION
INTV order : REFUSED
Final Order refused
Mr Kyriazis has commenced this proceeding for judicial review, in which he seeks an order quashing the decision of the Magistrates’ Court, and an order directing the Magistrates’ Court to proceed with hearing case number K13185787, on the grounds that:
(a) he was denied procedural fairness;
(b) the Magistrate failed to provide adequate reasons; and
(c) the Magistrate fell into jurisdictional error by striking out the application ‘in its entirety’ and thus failed to allow for a final hearing.
In the course of this proceeding, Mr Kyriazis has been ordered on several times: (a) to serve a copy of a recording he made of his interactions with the registry and of the hearing at the Magistrates’ Court; and (b) to file and serve a written submission. Mr Kyriazis has failed to do either, and Mr Horton-Crundall has applied by summons for an order that this proceeding be dismissed for want of prosecution.
Mr Kyriazis appeared for himself both before the Magistrates’ Court and in this Court.
B. The application before the Magistrate was only for an interim order and case number K13185787 remains on foot
When Mr Kyriazis attended at the Magistrates’ Court on 11 December 2019, he was not intending to apply for any orders against Mr Horton-Crundall, but was merely intending to commence a proceeding with a view to obtaining an intervention order later at a final, contested hearing. Mr Kyriazis accepted as much before me, and indeed confirmed that he does not even now wish to apply for an interim order. The following was said in Court:
HIS HONOUR: So you didn’t – so just to clarify then, you weren’t trying to get an order against Mr Horton-Crundall without him knowing about it and without him being - - -
MR KYRIAZIS: No not at all.
…
HIS HONOUR: I understand Mr Kyriazis – I don’t think he’s got any interest in an interim order. Perhaps I could – I understand that you [to Mr Kyriazis] want a contested court case to determine whether you get an intervention order or not.
MR KYRIAZIS: Well that’s how I presumed it, yes.
HIS HONOUR: Yes that’s all right, but you don’t have any interest in going and getting an order in the meantime without Mr Horton-Crundall being present to defend himself?
MR KYRIAZIS: I didn’t have an issue with that. No. I’m not concerned about that part of it.
HIS HONOUR: So if you were allowed to get this proceeding back on foot in the Magistrates’ Court, you would accept that there would be no order in place until you got to the final hearing.
MR KYRIAZIS: That’s right. That’s how I’d presume it to be.
This is consistent with the statements he made to the Magistrates’ Court registry, before the hearing, that he would be preparing an affidavit that would contain more information and that he would be issuing subpoenas. It is also consistent with his responses to the Magistrate — when the Magistrate was attempting to tease out detail from Mr Kyriazis, Mr Kyriazis said:
I can’t remember it offhand because that’ll be all provided in my affidavit
…
So, you know, unless you’re asking me for all of my material and evidence here today — is that what you’re asking for, Your Honour?
That said, the Magistrate clearly thought that Mr Kyriazis was applying for an interim order. Not only did the Magistrate make the determination set out in para 3, but the Magistrate had asked Mr Kyriazis when the matter was first called on whether he wished to apply for an interim intervention order, to which Mr Kyriazis replied that he did.
I am satisfied, for the above reasons, that, despite answering the Magistrate’s question in the affirmative, Mr Kyriazis was not in fact intending to apply for an interim intervention order. This is no criticism of the Magistrate or of the registry.
Despite the application being made as if by accident, it could only have been an application for an interim intervention order. It follows that the only order in fact made by the Magistrate was an order refusing an application for an interim intervention order. In circumstances where Mr Horton-Crundall had not been served with the originating process and did not appear, the application could not have been for anything more.[2]
[2]Were there any doubt, s 44 of the PSIO Act precludes the court from hearing a contested application for an final order on a mention date unless the court is satisfied that all parties to the proceeding have consented to the hearing of the contested application on that date.
Accordingly, to the extent that the certified extract indicates that case number K13185787 was brought to an end on 11 December 2019 with a ‘Final Order’ made against Mr Kyriazis, that is not correct. Nothing that happened on 11 December 2019 ought prevent that proceeding from progressing in the ordinary way.
It follows that Mr Kyriazis’ ground 3, which is that:
The Magistrate fell into jurisdictional error by striking out the Plaintiff’s application in its entirety and by thus failing to provide for a hearing for the purposes of finally determining the matter,
is misconceived, in that, despite the wording of the certified extract, that is not what the Court in fact did.
I do not criticise Mr Kyriazis for forming a mistaken view given the wording of the certified extract.
C. The appropriateness of commencing proceedings for judicial review
Mr Horton-Crundall submitted that Mr Kyriazis had 30 days to appeal to the County Court under s 91 of the PSIO Act or to the Supreme Court under s 109 of the Magistrates’ Court Act 1989 against the order made. He submitted that I ought exercise my discretion to refuse relief in this case because Mr Kyriazis had instead initiated this proceeding almost 60 days after the order was made. However, that submission was premised on the assumption that the order made was a final order. Given my conclusion that the order made was only the refusal to grant an interim intervention order, Mr Horton-Crundall had no right to appeal to the County Court under s 91 of the PSIO Act, as s 91(2)(b) of the PSIO Act provides that there is no appeal against a refusal to make an interim order. Similarly, s 109 of the Magistrates’ Court Act 1989 applies only to a ‘final order’, and thus there is at least a good argument that it would not apply here. Accordingly, I do not need to consider whether the principles set out in Sullivan v Greyfriars Pty Ltd[3] apply; I am satisfied that it was appropriate in the circumstances for Mr Horton-Crundall to bring this proceeding under ord 56 of the Supreme Court (General Civil Procedure) Rules2015.
D. The decision to refuse the application for an interim order was the only decision reasonably open
[3][2015] VSCA 196.
Section 35 of the PSIO Act provides that the Court may make an interim order if it is satisfied on the balance of probabilities that an interim order is ‘necessary to ensure the safety of the affected person’ and that it is ‘appropriate to make the order in all the circumstances of the case’.
The material put before the Magistrate consisted of the initiating process and Mr Kyriazis’ oral evidence from the witness box.
On the basis of this material, the decision to refuse the application for an interim order was the only decision reasonably open to the Magistrate. This is not surprising because, as he accepted before me, Mr Kyriazis had not gone to Court that day with the evidentiary material upon which he intended ultimately to rely, but had gone to court with a view only to getting proceedings commenced, and then preparing his evidence at a later date. Our exchange in Court was as follows:
HIS HONOUR: So that’s why I was asking you before, the impression I got was that what you were intending to do that day was simply to start a proceeding and get a court date so that in the fullness of time you could get your affidavits, your subpoenas and all that together - - -
MR KYRIAZIS: That’s right.
HIS HONOUR: - - - and have a full blown fight over whether you get the intervention order or not.
MR KYRIAZIS: Well that’s what I presumed or assumed.
HIS HONOUR: Yes.
MR KYRIAZIS: That’s what I wanted to achieve.
More particularly, the material put before the Magistrate on 11 December 2019 did not establish that an interim order was necessary ‘to ensure the safety of’ Mr Kyriazis. Further, it did not establish, even on a prima facie basis, that:
(a) Mr Horton-Crundall had engaged in prohibited behaviour under the PSIO Act.[4] The assertion in the initiating process that Mr Horton-Crundall ‘abused, threatened, assaulted, stalked and harassed’ Mr Kyriazis were conclusionary assertions and required some level of detailed exposition, in the evidence, if they were to be acted upon. This was not provided; nor
(b) If Mr Horton-Crundall had engaged in prohibited behaviour under the Act, that behaviour would cause a reasonable person to fear for his or her safety, which is a requirement set out in s 61(1)(a)(i)(B) of the PSIO Act; nor
(c) The behaviour complained of fell outside s 11 of the PSIO Act, which provides that the Act does not apply to conduct engaged in by a person performing official duties for the purpose of, inter alia: (a) the enforcement of the criminal law; or (b) the administration of any Act. It was common ground that Mr Horton-Crundall was, at the relevant time, acting as a PSO providing security at the Supreme Court. Presumably, this was pursuant to the Court Security Act 1980. For an intervention order to be made against a PSO in relation to his conduct in that role, there would have to be conduct of such a nature that it took it outside the protection of s 11 in some way. A finding that s 11 did not apply could not be made simply on the basis of a conclusionary assertion that the officer had ‘abused, threatened, assaulted, stalked and harassed’ someone at the Court.
[4]‘Prohibited behaviour’ is defined in s 5 of the PSIO Act to mean assault, sexual assault, harassment, property damage or interference, or making a serious threat. ‘Harassment’ is defined in s 7 of the PSIO Act to meant a course of conduct towards a person that is demeaning, derogatory or intimidating.
I note that, in the hearing before me, Mr Kyriazis asserted that Mr Horton-Crundall’s conduct had put him in fear. But no such evidence was put before the Magistrate.
E. Ground 2 — Procedural Fairness
Mr Kyriazis’ ground of appeal contended that he was denied procedural fairness because, in essence, he was forced by the registrar to make his application on the day he attended the Magistrates’ Court and in circumstances where he was ‘under-prepared for a hearing’. Further, he contended that the Magistrate determined the matter on the basis of his oral evidence when he had told the Magistrate that he had documents and witnesses that ‘would substantiate his application’ but which were ‘not available’ at the time of his appearance before the Magistrate.
Mr Kyriazis’ argument seems to assume that the order made was one that finally disposed of his proceeding. If that were so, then there would be something in his complaint. But given that the only order made was the refusal to grant an interim order, I do not consider that Mr Kyriazis was denied procedural fairness. There was nothing unfair to Mr Kyriazis in the registrar putting the matter before the Magistrate. Then, when the matter went before the Magistrate, as noted above, the Magistrate asked Mr Kyriazis whether he was applying for an interim intervention order, and Mr Kyriazis said that he was. Although I consider that Mr Kyriazis’ response was inaccurate and made by him in the pressure of the moment, not properly understanding, this does not amount to procedural unfairness. Mr Kyriazis did not apply to the Magistrate for an adjournment or indicate to the Magistrate that all he really wanted was a date for a later mention or hearing.
Finally, Mr Kyriazis also contends that the Magistrate ‘exhibited an air of disinterest’ and ‘expressed disgruntlement at having to hear’ an intervention order matter. Even if these matters could amount to procedural unfairness, the recording of the hearing, particularly the questioning of Mr Kyriazis by the Magistrate, makes it clear that the Magistrate appropriately focused on what he understood to be the application before him. There is nothing in this point.
F. Ground 3 — Reasons
Given the order made in the Magistrates’ Court was merely the dismissal of an application for an interim order, and it was not made in breach of the rules of procedural fairness, I would not exercise my discretion to quash the decision, even if the lack of detail in the reasons were a ground to do so, in circumstances where:
(a) On the material placed before it, the decision of the Magistrates’ Court was the only decision reasonably open on the material before it; and
(b) Mr Kyriazis did not wish and does not wish to apply for an interim order in any event.
Accordingly, it is not necessary for me to determine whether the (very brief) reasons in this case amounted to an error of law.
G. Mr Horton-Crundall’s summons
Mr Horton-Crundall applied by summons for an order that this proceeding be dismissed for want of prosecution. This application was based on the fact that Mr Kyriazis had failed to comply with orders made by the Court that he serve a copy of the recording he made at the Magistrates’ Court by 16 November 2020, then 16 December 2020, then 3 March 2021, and that he had failed to comply with orders made by the Court that he file and serve a written submission by 28 August 2020, then 27 November 2020, then 10 February 2021, then by 3 March 2021.
Mr Kyriazis told me that he did not serve a copy of his recording because he had made it clear that he was only going to rely on his recording in the event that the Court’s recording was not obtained. This attitude ignored the fact that his recording included a recording of his interaction with the registry, and not just a recording of the hearing before the Magistrate, in circumstances where his complaints in this proceeding extended to the conduct of the registrar. In short, Mr Kyriazis made a deliberate decision to breach a series of court orders relating to the service of the recording because, in essence, he simply did not want to comply with them. This is not an acceptable explanation. It is also an odd one, given that he had filed a copy of the recording with the Court. His explanation for failing to provide a written submission was more understandable. He said that he was computer illiterate, did not have access to relevant websites, and that due to the coronavirus he had lost his ability to communicate with people who had previously been assisting him.
Be that as it may, it would be an odd result to dismiss a proceeding for want of prosecution on the very day it had come on for trial. So much was accepted by Mr Horton-Crundall, and his argument, in truth, developed into an argument that Mr Kyriazis’ underlying claim for an intervention order was so lacking in merit that it was liable to be summarily dismissed, so this proceeding should be dismissed. Mr Horton-Crundall pointed out that Mr Kyriazis had failed to put material before the Magistrate that could justify the making of an intervention order, and submitted that, because Mr Kyriazis had to show that any error below was material, he was obliged, but had failed, to put any material before this Court that could justify the making of an intervention order.
It seems to me that Mr Kyriazis’ claim for an intervention order does face considerable difficulties. He has already failed in an application for an intervention order that was finally heard in the County Court on 8 October 2019.[5] This would likely limit Mr Kyriazis in this proceeding to interactions after that date. The interaction that he relies on in this proceeding took place on 15 November 2019.[6] Mr Kyriazis exhibited to his affidavit filed in this proceeding a handwritten complaint dated 19 November 2019, made by him, relating to the 15 November 2019 incident. On its face, the conduct described in this document would probably not amount to prohibited behaviour, nor cause a reasonable person to fear for his or her safety, nor be sufficiently disconnected from Mr Horton-Crundall’s work duties to avoid the operation of s 11 of the PSIO Act. The statement does not even allege that Mr Horton-Crundall touched Mr Kyriazis on that occasion or really did any more than order him off the court premises when Mr Kyriazis felt Mr Horton-Crundall had no right to do so.
[5]The application failed in the Magistrates’ Court, and Mr Kyriazis appealed to the County Court, where it was heard de novo.
[6]Although Mr Kyriazis will, it seems, rely on the earlier interactions to place this later interaction in its proper context.
On the other hand, Mr Kyriazis stated in Court that Mr Horton-Crundall’s conduct did put him in fear. More importantly, Mr Kyriazis has not yet filed his affidavit material in support of his claim for an intervention order and it is possible that he could add to the matters set out in his handwritten statement. In those circumstances, it cannot now be concluded that his underlying case is entirely without merit.
Be that as it may, this proceeding is an application for judicial review of an order refusing an application for an interim intervention order. As I have decided not to quash the interim decision, and the Magistrates’ Court proceeding otherwise remains on foot, it is not necessary for me to determine whether the difficulties faced by Mr Kyriazis’ underlying claim are insurmountable.
H. Conclusions
For the above reasons, I will dismiss both Mr Horton-Crundall’s summons and Mr Kyriazis’ application for an order quashing the decision of the Magistrates’ Court.
As noted above, in my view, case number K13185787 has not been disposed of and remains on foot in the Magistrates’ Court, and the certified extract is wrong in that it suggests that a final order has been made in that proceeding. I propose to reserve liberty to Mr Kyriazis to apply to me for further orders in the event that he wishes to proceed with case number K13185787 and the Magistrates’ Court refuses to do so on the basis that, contrary to the findings in this judgment, it considers that that proceeding has been finally dealt with.
I. Final Comments
Nothing in this judgment is meant to foreclose Mr Horton-Crundall’s right to apply, should he wish to do so, in case number K13185787 for orders that the application for an intervention order be summarily dismissed or otherwise disposed of. If such an application is brought, its merits ought be determined in the Magistrates’ Court in the usual way, and nothing in this judgment is intended to constrain the Magistrates’ Court in its determination of any questions that may arise in respect to that issue.
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