Kyriazis v Horton-Crundall - [2021] VSC 196

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSC 196
Decision Date: 22 April 2021

CaseChat Overview and Summary

In the case of Kyriazis v Horton-Crundall, the applicant, Kyriazis, sought judicial review of a Magistrates’ Court of Victoria decision related to an intervention order proceeding. The primary dispute centred on the accuracy of a certified extract of the Magistrate’s orders, which incorrectly recorded the decisions made. Additionally, the applicant challenged the decision to refuse his application for an interim order. Notably, Kyriazis indicated that he did not seek the interim order, thereby limiting the scope of the review.

The court was required to determine whether the decision to refuse the application for an interim order was one that was reasonably open to the Magistrate, given the circumstances. It also had to assess whether there was a denial of procedural fairness and whether the reasons provided were sufficient. Furthermore, the court considered whether the discretion to quash the interim order decision should be exercised.

The court found that the decision to refuse the application for an interim order was indeed one that was reasonably open, as the applicant had not sought such an order. There was no denial of procedural fairness, and it was unnecessary to decide whether the reasons were sufficient. Consequently, the court dismissed the application for judicial review without exercising its discretion to quash the interim order decision. Additionally, the court dismissed the summons for dismissal for want of prosecution filed by the first defendant, Horton-Crundall, with liberty to apply.

Orders