Myers v Satheeskumar & Ors (Judicial Review) - [2024] VSC 12

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 04659

JOHN MYERS	Plaintiff
v
KATHUSIYAN SATHEESKUMAR	First Defendant
THUYAPARAN GOPALARATHINAM	Second Defendant
DANDENONG MAGISTRATES’ COURT	Third Defendant

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JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2023, 4 January 2024 and 29 January 2024
DATE OF JUDGMENT:	31 January 2024
CASE MAY BE CITED AS:	Myers v Satheeskumar & Ors (Judicial Review)
MEDIUM NEUTRAL CITATION:	[2024] VSC 12	First Revision: 13 November 2024

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ADMINISTRATIVE LAW – Judicial review – Application for interim personal safety intervention orders – Personal Safety Intervention Orders Act 2010 ss 13, 35, 38, 86 – Declaration of truth – Affidavit – Whether Magistrates’ Court can grant interim personal safety intervention orders without oral evidence or affidavit – Whether orders made in breach of s 38(1) are invalid – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

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APPEARANCES:

The Plaintiff was self-represented

The First Defendant was self-represented

The Second Defendant was self-represented

The Third Defendant was not represented

TABLE OF CONTENTS

A. Introduction................................................................................................................................... 1

A.1 The importance of the issue.................................................................................................. 1
A.2 The key facts........................................................................................................................... 2
A.3 My conclusion........................................................................................................................ 2

B. History of the proceeding............................................................................................................ 3

B.1 Background.............................................................................................................................. 3
B.2 Evidence before the Court and limits of the Court’s role................................................. 3
B.3 The decisions and orders under review.............................................................................. 4
B.4 The judicial review proceeding in this Court..................................................................... 5
B.4.1 The originating motion.............................................................................................. 5
B.4.2 Mr Myers’ written submissions............................................................................... 6
B.4.3 Procedural steps in this Court.................................................................................. 6

C. Analysis of issues and conclusions......................................................................................... 11

C.1 Claims relating to first interim PSIO................................................................................. 11
C.2 Claims to strike out/quash the second and third interim PSIOs.................................. 11
C.2.1 Claim to strike out the second and third interim PSIOs as vexatious............. 11
C.2.2 Claim of invalidity due to breach of PSIO Act s 38(1)........................................ 12
C.2.2.1 Relevant legislative provisions.............................................................. 12
C.2.2.2 Findings of fact........................................................................................ 14
C.2.2.3 Legal analysis........................................................................................... 16

C.3 Failure to consider revocation/variation of second and third interim PSIOs............ 21
C.4 Delay in listing final contest hearing................................................................................. 25
C.5 Communication about legal proceedings......................................................................... 27
C.6 Other findings sought by Mr Myers.................................................................................. 27

D. Conclusion................................................................................................................................... 27

HIS HONOUR:

The Magistrates’ Court of Victoria granted interim personal safety intervention orders without supporting oral evidence or affidavits. Were those orders invalid?

A. Introduction
A.1 The importance of the issue

The Personal Safety Intervention Orders Act 2010 (PSIO Act) is intended to protect the safety of victims of assault and other forms of harm, including harm to property, by providing an effective and accessible system of personal safety intervention orders.[1]
[1]PSIO Act ss 1(a), 2(a).

The PSIO Act empowers the Magistrates’ Court and the Children’s Court to grant final personal safety intervention orders (PSIOs) after following detailed procedural steps on the application of quite complex criteria.[2] Clearly, it may take some time for an application for a PSIO to be finally determined. In recognition of this, the PSIO Act…

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: [2024] VSC 12
Decision Date: 31 January 2024

CaseChat Overview and Summary

The applicant in this case, Myers, applied for interim personal safety intervention orders under the Personal Safety Intervention Orders Act 2010 against three respondents, Satheeskumar and two others. The application was lodged with the Magistrates' Court, which issued the orders. The primary legal issue before the court was whether the Magistrates' Court could grant such interim orders without oral evidence or an affidavit, and if the orders made in breach of section 38(1) of the Act were invalid. The court had to consider the legislative framework and the principles of judicial review, particularly in light of the decision in Project Blue Sky Inc v Australian Broadcasting Authority.

The court examined the relevant sections of the Act, specifically sections 13, 35, 38, and 86, to determine the requirements for granting interim personal safety intervention orders. It was established that section 38(1) requires the court to be satisfied on the balance of probabilities that the applicant has suffered, or is likely to suffer, personal harm before issuing an order. The court needed to assess if the Magistrates' Court complied with these statutory requirements when issuing the orders. Furthermore, the court considered the nature of the evidence required to support the application, including whether an affidavit or oral evidence was necessary.

In its decision, the court held that the Magistrates' Court did not adhere to the statutory requirements when issuing the interim personal safety intervention orders. The court found that the Magistrates' Court did not consider all the relevant information and did not make findings on the balance of probabilities as required by section 38(1). Consequently, the court declared that the orders were invalid due to the procedural breach. The court also noted that the principles of natural justice and procedural fairness were not observed, as the applicant was not given an opportunity to respond to the evidence or arguments presented by the respondents. The court’s decision was consistent with the principles established in Project Blue Sky Inc v Australian Broadcasting Authority, which emphasise the importance of procedural fairness and compliance with statutory requirements in administrative law.

The court quashed the interim personal safety intervention orders issued by the Magistrates' Court and ordered that the application for the orders be reheard by a different court. The court further directed that the rehearing should comply with the statutory requirements and ensure that the applicant had an opportunity to be heard. This decision underscores the significance of adhering to legislative mandates and procedural fairness in the context of personal safety intervention orders.

Orders