O'Connell v Gale
[2023] VCC 2212
•11 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE APPEALS & POST SENTENCE LIST | Revised Not Restricted Suitable for Publication |
COMMON LAW DIVISION
Case No. AP-21-0823
| CATHY O’CONNELL | Appellant |
| v | |
| TONY GALE | Respondent |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 & 28 November 2023 | |
DATE OF JUDGMENT: | 11 December 2023 | |
CASE MAY BE CITED AS: | O’Connell v Gale | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2212 | |
REASONS FOR JUDGMENT
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Subject:Appeal against order striking out personal safety intervention order application and order for costs
Catchwords: Legal, factual or discretionary error – Where appellant is self-represented litigant – order striking out for want of prosecution – order for costs – Error having no material effect
Legislation Cited: Personal Safety Intervention Orders Act 2010 (Vic); Family Violence Protection Act 2008 (Vic)
Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13; Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153; DeVries v Australian National Railways Commission (1993) 177 CLR 472; Lee v Lee (2019) 266 CLR 129; Blunt v Blunt [1943] AC 517; House v The King (1936) 55 CLR 499; Gett v Tabet (2009) 254 ALR 504; WS v Gardin [2015] WASC 97; Jan v Minister for Home Affairs [2019] FCA 1837; Hobson (a pseudonym) v Secretary to the Department of Justice and Community Safety [2022] VSCA 101; De Winter v De Winter (1979) 23 ALR 211; Stead v State Government Insurance Commission (1986) 161 CLR 141; Ahamed v Coles Supermarkets Australia Pty Ltd & Ors [2023] VSCA 239; Carroll (a pseudonym) v Browne (a pseudonym) & County Court of Victoria [2018] VSC 253; Bishopsgate Insurance Australia Ltd (In liq) v Deloitte Haskins & Sells [1999] 3 VR 863; Garcev v Higgs [2020] VCC 927; Swindale v Babic [No 2] [2007] WASCA 262; Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; Department of Transport v Chris Smaller (Transport) Ltd [1989] 1 All ER 897; Owens v Stevens (unreported, Supreme Court, Vic, Hedigan J, No 6834 of 1991, 3 May 1991); R v Ioannou [2007] VSCA 277
Judgment:Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Mr J A Willee | Asprey Lawyers |
HIS HONOUR:
Introduction
1The appellant (“O’Connell”) appeals from orders in the Magistrates’ Court being:
(a) an order striking out her application for a personal safety intervention order against the respondent (“Gale”). This order was made by Magistrate Hodgson on 22 June 2021 in Magistrates’ Court matter L12282067;
(b) an order made by Magistrate Hodgson awarding Gale costs against her as a result of the striking out of her proceeding. This decision was made on 4 August 2021.
Relevant factual background
Facts
2The facts in this matter can be exhaustively set out and examined. In this case that is a fruitless exercise because of the way appeals in such matters are to be heard by this Court. When hearing an appeal, this Court is bound by the decision in AAA v County Court of Victoria & Ors (“AAA”);[1] that is, to conduct an appeal not as a hearing de novo, but rather as a broad appeal. Such an appeal requires O’Connell to demonstrate that there has been a legal, factual or discretionary error in the decision of the Magistrate below in order to enliven the jurisdiction of this Court. Without the demonstration of such an error this Court is unable to entertain the appeal and it must fail.
[1][2023] VSC 13
3This Court may permit fresh evidence to be admitted in the appeal.[2]
[2] Ibid, at [63]-[64]
4By reason of these matters the relevant facts can be briefly and very broadly stated in the following terms.
5O’Connell and Gale occupy adjoining properties. O’Connell lives in a unit on Lincoln Place, Windsor, and Gale (and his partner Ms Burgemeestre) live in the adjoining unit on Lincoln Place, Windsor. In 2018, O’Connell obtained building approval to build on her site. The plans required a brick garage wall to form part of the boundary between the two properties. At some point Gale erected a steel fence on the boundary which impeded construction of the brick garage wall. A fencing dispute arose. From that dispute the parties fell into claim and counterclaim as to the alleged poor behaviour of each other. As part of those allegations O’Connell sought a Personal Safety Intervention Order (PSIO) against Gale in the Magistrates’ Court which bore the number L12282067. That matter was to be heard along with several other matters arising out of the claim and counterclaim each party had against the other. The various matters (five in total) came on for hearing before Magistrate Hodgson on 19 and 20 May 2021. They were adjourned part-heard to 21 and 22 June 2021. Prior to recommencing on 21 June 2021, O’Connell became unrepresented. The case was heard on Webex as it was during the COVID pandemic.
6On 21 June 2021, O’Connell was part way through cross-examination when Court was adjourned for the day. Her cross-examination then recommenced on the morning of 22 June 2021. As foreshadowed by Counsel for Gale previously, he began cross-examining O’Connell as to her credit and in particular a case she had been involved in some years ago, which had been decided in the Court of Appeal in 2014. O’Connell objected to this line of questioning. She informed the Magistrate that the questions were not relevant and further that she had been instructed on legal advice not to answer the questions as they involved matters of legal professional privilege. She said that she would not answer such questions and would leave the hearing. The Magistrate ruled that the questions were permissible and that if she left then the case would be decided without her present. Counsel for Gale then continued with his line of questioning. O’Connell again objected and then terminated her Webex link to the Court. The magistrate adjourned the case for five minutes to permit O’Connell to re-join the Webex hearing.[3] When she did not, the Court reconvened and Magistrate Hodgson struck out L12282067 for want of prosecution. This is the first order O’Connell appeals from.
[3]Day 4 of hearing, 22 June 2021. The relevant portion of the audio file begins at minute 30 and continues to minute 48. I have listened to the entirety of the Day 4 audio but as to the facts recited here, I have set out the hearing period relied on.
7After the striking out order was made Gale applied for costs. This argument was adjourned for hearing until 13 July 2021. Notice was given to O’Connell that Gale sought costs of the PSIO application which had been struck out. At the hearing on 13 July 2021 O’Connell was represented by Counsel, Ms Mak, and Gale was represented by Counsel, Mr Willee. At the conclusion of argument, the Magistrate reserved her decision. She handed down a ruling on 4 August 2021. In that ruling she found that “exceptional circumstances” existed within the meaning of s111 of the Personal Safety Intervention Orders Act 2010 (Vic) (“the Act”) and ordered O’Connell to pay Gale’s costs in the sum of $11,135.00. This is the second order O’Connell appeals from.
Issues to be determined
A. The first issue raised is by the respondent as to whether the appeals to this Court were made within time.
B. If the appeals were in time the next substantive question to be determined is whether, when the magistrate struck out O’Connell’s claim on 22 June 2021, because O’Connell refused to participate in further cross-examination, a legal, factual or discretionary error was committed.
C. The question which follows is whether in making a costs order against O’Connell the magistrate incorrectly interpreted what “exceptional circumstances” mean for the purposes of s111 of the Act.
Legislative framework
8I now turn to consider the appeals.
9These appeals come before this Court pursuant to the Act after relevant decisions were made in the Magistrates’ Court.
10Section 93 of the Act requires an appeal to be commenced with the filing of a notice of appeal with the Court that made the relevant decision within 30 days of the decision.
11There is no power to extend the time in which an appeal is made.[4]
[4]Carroll (a pseudonym) v Browne (a pseudonym) & County Court of Victoria [2018] VSC 253
12Relevantly s96 of the Act specifies the following:
“(1)The appeal is by way of a rehearing by the County Court or the Supreme Court.
(2) On the 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 or Children’s Court could have made and exercise any other powers that the Magistrates’ Court or Children’s Court may have exercised;
….”
13The Court set an initial timetable listing the matter for trial. Prior to the trial date, the Supreme Court handed down the decision by the Honourable John Dixon J in AAAv County Court of Victoria & Ors (“AAA”).[5]
[5][2023] VSC 13
14In that decision, his Honour John Dixon J considered the terminology associated with s119 of the Family Violence Protection Act 2008 (“the FVPA”), and particularly the meaning of the term “rehearing by the County Court” which appears there. In that case, his Honour held that an appeal under s119 is a broad appeal by way of rehearing. I consider that the decision of his Honour John Dixon J applies equally to cases heard under the regime set out by the Act. This is because of the similar wording utilised in the appeal provisions of both Acts. Furthermore, the legislative purpose behind both Acts is similar. Both matters suggest strongly that the same appeal provisions should apply.
15The features of such a broad appeal, as his Honour John Dixon J set out, are the following:
(a) that the appeal court will apply the law as it exists at the time of the appeal to the facts as it finds them;[6]
(b) the powers of the appeal court are exercisable only where the appellant can demonstrate the original decision-maker made some legal, factual, or discretionary error;[7]
(c) the appeal may be conducted by reference to the evidence given at the first instance, though with power to receive further evidence;[8]
(d) the Court is required to assess and evaluate the evidence for itself.[9]
[6]AAA at [50]
[7]Ibid
[8]Ibid
[9]Ibid
16However, his Honour noted that an appeal of this nature did not have an immutable set of characteristics or inflexible boundaries but, ultimately, would be informed by the legislation creating the appeal right, the jurisdiction, the composition and functions of the tribunal from whose decision the appeal lies, and the individual circumstances of the case at hand.[10]
[10]Ibid at [54]
17As to any evidence which may be permitted at the rehearing, his Honour considered that new evidence could be admitted.[11] He elaborated that the appellate court is not confined to the record of evidence led at the original hearing, and may hear new evidence presented on the appeal. It is then the appeal court’s function to apply the law at the time when the appeal is heard to consider all of the admitted evidence. He summarised this as being an appeal by way of rehearing based upon the evidence given in the court of first instance, supplemented by further evidence.[12]
[11]Ibid at [63]
[12](Ibid) at [51(b)], relying on Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624, 645 at [65]
18Broadly, the ratio of that case was that an appellant needs to demonstrate a legal, factual or discretionary error in the Magistrates’ Court’s decision to enliven the jurisdiction of this Court. Such error may be proved after an examination of the transcript in the Magistrates’ Court, to examine the conduct of the proceeding and any reasons for decision.
19To that extent, the Court and the parties have received the audio recording of the Webex hearings conducted by Magistrate Hodgson on 19 and 20 May and 21 and 22 June 2021. No transcript was received of those hearings at the time of the appeal in this Court. No Webex recordings or transcript of the hearings on 13 July and 4 August 2021 were received.
20I record that, as Head of the Common Law Division of this Court, investigations into numerous matters by the Registrar of this Court, relating to family violence intervention order (“FVIO”) and personal safety intervention order (“PSIO”) matters such as this, have revealed that it is often the case that the Magistrates’ Court has no Webex or audio recording of all or part of a hearing. Further, very few participants in these cases have the financial means to obtain transcript. This Court is faced with a rising number of such appeals and, in most cases, transcript is not available to allow the Court to examine the record below. That record also usually contains the reasons for decision of the learned Magistrate, who will often deliver an oral judgment. Without the transcript, it is extremely difficult for an appellant to identify the alleged error, or for this Court to rule on the appeal. The Registrar’s investigations also revealed that in the overwhelming number of appeals at least one party is self-represented. Where no Webex or audio recording is available, the Court has asked parties to provide a written statement as to what occurred in the Magistrates’ Court hearing.[13] This Court’s experience is that self-represented litigants find this difficult and the information provided is rarely useful.
[13]Ahamed v Coles Supermarkets Australia Pty Ltd & Ors [2023] VSCA 239 at [26]
General Principles Applicable to the Appeal
21The first order made by Magistrate Hodgson was on 22 June 2021 relating to the striking-out of the proceeding. The second order as to costs was made on 4 August 2021. The appeal in this Court was initiated on 20 July 2021 with an email to this Court setting out grounds for appeal, with an attached Notice of Appeal from the Melbourne Magistrates’ Court.[14] This latter document was undated.
[14]CB 55
22Given the length of time the proceedings had been on foot and the failure to obtain further recordings of all the Magistrates’ Court proceedings for the relevant dates and the inability of the parties to fund the provision of transcript, the Court made the decision to set this matter down for hearing after obtaining the audio visual Webex recording as to the proceedings on 19 and 20 May and 21 and 22 June 2022.
23In accordance with those orders O’Connell filed a statement setting out purported grounds of appeal:[15]
“1. Error of Law
(a)The written submission was filed under the wrong file number by the solicitor to the Magistrates Court. The full file was not available to the Magistrate.
(b)The Court lost our USB of video footage showing Gale’s full harassment of me.
(c)The Magistrate did not see all the videos.
(d)The court took into account a baseless allegation of criminal damage (fence matter) which should not have been taken into account as we had not even been formally charged or interviewed by Police and we were eventually fully cleared of all and any charges as we acted under legal right. Justin Willee, the barrister for the Defendant, told the Court there had been “a violent assault” and that the tradesman, Phil, had been arrested and that Police were out to arrest us, all of which was just completely and utterly untrue. The Magistrate erred by taking these totally fabricated lies into account.
(e)It was a breach in the provision of the Evidence Act in allowing improper questions by Mr Willee to the Appellant regarding a medical negligence case. The improper questions were designed to harass, belittle and annoy.
[15]Joint Court Book 6 (“JCB”)
2. Factual error
The Magistrate failed to take into account that the Appellant had an interim order against the Respondent already and she and her trades had appeared on site under the instruction of her then barrister Tim Fitzpatrick, Orders of the Building Appeal Board, VCAT Orders and Magistrate Court Orders. The Appellant suffered a fractured wrist that day indirectly because of the shocking actions of the Respondent, Tony Gale that has left her with a permanent disability in her wrist as the bone is shattered and inoperable.
3. Discretionary error
The Magistrate erred in not allowing me to re-join the Webex. I was locked out and a judgement was made in my absence.
4. The County Court’s jurisdiction is enlivened because of the errors of fact, law and discretion as outlined above.
5. The basis on which the Court should admit any proposed and/or fresh evidence is that the harassment of Mr Gale toward me continues and has been going on since 2016. I need an Order so Mr Gale will stay away from me and my trades so I can build my building at Lincoln Place in peace.”
(Original emphasis)
24At the hearing of this matter, a joint court book was filed. It comprised nearly 600 pages. I took O’Connell to her notice of appeal and explained the requirement in AAA of demonstrating a legal, factual or discretionary error in the Magistrate’s decisions. I then went through the court book with her document by document and had her explain why she wished to have the document admitted as evidence in this appeal. Numerous documents were tendered. A list of those exhibits is attached to this judgment.
25I reserved to this judgment rulings on several documents which the respondent objected to being tendered as evidence. The first was MFI A12 at court book pages 96-99, being a memorandum of Ms K Mak of Counsel who appeared for Ms O’Connell on 13 July 2021 on the question of costs. I rule that document as inadmissible on the grounds of irrelevance, hearsay and prejudice. The second was MFI A17,[16] a charge sheet dated for 13 May 2022. I rule this document inadmissible as it is irrelevant being some 9 months after the Magistrate’s decision. The third was MFI A20, being three emails sent by O’Connell to the Online Magistrates’ Court on 22 June 2021 at 12.48pm, 1.12pm, 1.15pm and 2.43pm. I rule these documents relevant and admissible.
[16] CB 222
Errors of law, fact and discretion
26What constitutes an error in any particular case is wholly dependent on the evidence considered in the context of the objective findings of the primary judge.[17] With that said, established legal principles operate to guide the courts through an assessment of claimed errors. I turn now to briefly consider those.
[17]Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833
Legal error
27A legal error may arise in the way in which a court “undertakes its fact-finding … in the way in which it construes the statute which it is applying in a particular case, or in some other aspect of its reasoning”.[18]
[18]Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 at [23]
28Appeals operate as a safeguard against these errors, to ensure that courts and tribunals operate within their jurisdiction.[19]
[19]Ibid
Factual error
29A factual error arises when a trial judge’s findings of fact are “glaringly improbable” and “inconsistent with facts incontrovertibly established by the evidence”.[20] A factual error does not arise simply because an appellate court considers that the probabilities of the case are against that finding of fact.[21]
[20]DeVries v Australian National Railways Commission (1993) 177 CLR 472 at 479
[21]Ibid
30The legal principles with respect to factual errors were summarised by Bell, Gageler, Nettle and Edelman JJ in Lee v Lee:[22]
“A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’.”
[22](2019) 266 CLR 129 at [55]
31Similarly, in Blunt v Blunt[23] it was said:
“If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal.”
[23][1943] AC 517 at 526
Discretionary error
32Where the evidence identifies an error by the trial judge in the exercise of their discretion, the appellate court may then exercise its own discretion on that point.
33The legal principles with respect to discretionary errors were identified by Dixon, Evatt and McTiernan JJ in House v The King:[24]
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[24](1936) 55 CLR 499 at 504-505
Complaints as to conclusion
34Notwithstanding the statutory obligations placed upon appellate courts to scrutinise the evidence, inferences and conclusions before them, the general “tenor” of appellate court decisions on these issues is of a broad respect for the conclusions reached by trial judges.
35To establish that a conclusion of a trial judge was incorrect, it is necessary for an appellant to satisfy the appellate court that the trial judge reached the wrong conclusion by reason of an error of law, fact or discretion, supported by evidence.[25]
[25]Gett v Tabet (2009) 254 ALR 504 at [22]
36In Gett v Tabet, Allsop P, Beazley and Basten JJA explained:[26]
“Where no error can be identified and the conclusion of his Honour is not itself implausible, this court should properly give weight to the view formed by the trial judge, because to do so is to acknowledge the fact that in various respects, his Honour enjoyed a beneficial position in resolving conflicting evidence, drawing inferences and making the ultimate evaluative judgment.”
[26]Ibid
37In circumstances where an error is identified, to succeed on appeal it must be established that the identified error puts the validity of the conclusion in doubt. If the error in question is inconsequential, the fact of the error is not of itself enough for an appeal to succeed.[27]
[27]WS v Gardin [2015] WASC 97 at [138]-[139]; see also Jan v Minister for Home Affairs [2019] FCA 1837 at [48]
38The High Court in De Winter v De Winter[28] clarified the circumstances in which such an error would affect the ultimate decision on appeal:
“There are many other authorities, from Young v Thomas [1892] 2 Ch 134 at 137 to Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may, in some cases, appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.
It is perfectly true that the opinion which a judge forms as to the credibility of a witness may be influenced by a variety of matters. A number of pieces of evidence may lead to the conclusion that the witness is generally unreliable, but one example of false testimony may be enough, and of course the demeanour of the witness alone may lead to that conclusion. But where a judge has reached such a conclusion for a variety of reasons, and it is demonstrated that some of those reasons are unsound, his decision will not necessarily be upheld because the other reasons themselves have been sufficient to support it. The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand, notwithstanding the unsoundness of some of its foundations.”[29]
(Emphasis added.)
[28](1979) 23 ALR 211
[29]Ibid at 217-218
39Finally, where an appeal is brought on the basis that a trial judge ought to have attributed greater weight to certain evidence, or reached an alternative conclusion based on the evidence, it is necessary for the appellant to establish that the conclusion of the primary judge was not open on the material before them.[30]
[30]Hobson (a pseudonym) v Secretary to the Department of Justice and Community Safety [2022] VSCA 101 at [20]-[21]
40Having set out those principles, I now turn to the grounds of appeal pressed by in this matter.
The Respondent’s contention: is the appeal in time?
41Before dealing with O’Connell’s grounds of appeal it is necessary to deal with the respondent’s contention that the appeal was brought out of time. The respondent filed no written submission on this point; however, in the course of the appeal, raised the issue orally and informed the Court that there had been a previous ruling made by Judicial Registrar Bales that the appeal had been issued in time. There are several things that must be said as to that submission. First, if there had been such a Ruling it was never the subject of an appeal in accordance with the rules of the Court. Second, the making of a submission in direct contradiction of a Ruling of this Court which had not been appealed seeks to relitigate a decided issue, which is not permitted given no appeal has been filed, and offends the principle of finality in litigation. Third, the matter was not raised in submissions, denying the appellant procedural fairness. In all those circumstances the path adopted by Counsel for the respondent, Mr Willee, in raising this ground was unmeritorious. The respondent’s contention cannot be considered.
Grounds of Appeal
Ground 1: Error of law
42There are numerous points which are said to support this ground. Dealing with each in turn:
a) The written submission was filed under the wrong file number by the solicitor to the Magistrates’ Court. The full file was not available to the Magistrate.
43The appeal is in relation to the striking out of the application for a PSIO, which arose in circumstances where O’Connell determined to cease participation in the Webex hearing. Whether submissions were properly filed or not does not bear on the Magistrate’s decision to strike out the application for a want of prosecution. Only where the factual error may have affected the outcome will the error be material. A factual error which is not capable of affecting the decision is not a basis for finding an error of law.[31]
b) The Court lost our USB of video footage showing Gale’s full harassment of me.
[31]Stead v State Government Insurance Commission (1986) 161 CLR 141
44I repeat my reasoning above.
c) The Magistrate did not see all the videos.
45I repeat my reasoning above.
d) The court took into account a baseless allegation of criminal damage (fence matter) which should not have been taken into account as we had not even been formally charged or interviewed by police and we were eventually fully cleared of all and any charges as we acted under legal right. Justin Willee the barrister for the defendant told the court there had been a violent assault and that the tradesman, Phil had been arrested and that police were out to arrest us, all of which was just completely and utterly untrue. The magistrate erred by taking these totally fabricated lies into account.
46I repeat my reasoning above. Further, I consider the sole basis for the Magistrate’s decision to strike out was that O’Connell had withdrawn from the hearing by terminating her Webex link. The Magistrate did not consider any of the factual material underpinning the substantive application, including that which O’Connell sets out in this particular. The Magistrate’s decision was in no way an adjudication of the merits. If it were, then such factual matters may have had an influence on her decision-making. However, by the fact of O’Connell’s withdrawal from the proceeding, the matter did not proceed to a point where any factual material was to be considered. This particular does not bear on the order made and has no material effect on the Magistrate’s decision.
e) It was a breach in the provision of the Evidence Act in allowing improper questions by Mr Willee to the Appellant regarding a medical negligence case. The improper questions were designed to harass, belittle and annoy.
47I repeat my reasoning above. Furthermore, it must be pointed out that s47 of the Act limits the applicability of the Evidence Act 2008 (“Evidence Act”) to certain sections,[32] and otherwise broadly permits the Court to inform itself in any way it thinks fit, despite rules of evidence to the contrary. Specifically, s47(2) sets out the sections of the Evidence Act which do apply to hearings in PSIO matters.
[32]Specifically, s13 as to capacity, s30 as to interpreters, s31 as to deaf and mute witnesses, s41 Improper questions, Part 3.10 Privilege
48Though O’Connell has not specified which section is said to be contravened by the Magistrate in her ruling, I have taken her particularisation to relate to s41 as to improper questions and Part 3.10 as to various claims of privilege which may form the basis for properly disallowing certain questions or permitting a witness to object to answering questions. To explain this, it is necessary to set out some background. During the morning of 22 June 2021, Counsel for Gale indicated that he wished to cross-examine O’Connell about a medical negligence case that she had brought some years earlier against a doctor.[33] In that case she had been unsuccessful and the trial court in a written judgment had made some remarks as to the veracity of her evidence. That matter went on appeal to the Court of Appeal and a judgment was published upholding the decision below. When cross-examination began Counsel took O’Connell to the Court of Appeal decision. At this point O’Connell objected on the grounds that the questioning was improper – as to relevance. She also told the Magistrate that she had received legal advice that she could litigate the claim against the doctor as she now had better radiology to prove her case (being MRI scans). On that basis she said that she would not answer questions as she would have to divulge legally privileged material. The Magistrate ruled the questions were not improper, were relevant, and implicitly that there was no traverse of legally privileged material. She allowed the questioning to continue. At that point O’Connell withdrew.
[33]22 June 2021, Webex hearing at 3 minutes 30 seconds
49I apprehend that O’Connell is submitting that the Magistrate has made an interlocutory error in the application of the Evidence Act, which entitled her to terminate her participation in the proceeding.
50That submission cannot be accepted because it runs counter to a fundamental legal principle as to the way that disputes regarding interlocutory decisions are to be dealt with. The principle was succinctly stated by Newnes JA in Swindale v Babic [No 2]:[34]
“To encourage the prosecution of appeals against interlocutory orders at trial before final judgment in the action would be to encourage the unnecessary fragmentation of proceedings, interfering with their orderly disposal and increasing costs: see Gerlach v Clifton Bricks. It would also be to encourage appeals in circumstances where the final judgment may have the effect of rendering the appeal unnecessary.”
(Emphasis added.)
[34][2007] WASCA 262 at [18]
51His Honour identified the principle that a party being dissatisfied with a ruling of a presiding judicial officer on an interlocutory matter, such as the admissibility of evidence, ought to wait for final judgment before launching an appeal against that judgment and nominating the interlocutory decision as constituting the legal, factual or discretionary error.
52His Honour drew authority for that proposition from Gerlach v Clifton Bricks Pty Ltd.[35] In that case a worker sued his employer for common law damages stemming from injuries suffered in the course of his employment. In the NSW District Court, the employer sought trial with a judge and jury. However, by application the plaintiff sought to dispense with the jury. That application was granted. The employer did not seek to appeal from that interlocutory decision and the trial then proceeded. It resulted in a verdict for the plaintiff. At that point the employer appealed and nominated the interlocutory decision to dispense with the jury as constituting an error. The High Court held that approach was in accordance with authority and “good sense”.[36] The Court held that to require appeals against interlocutory decisions, such as those to admit evidence or dispense with trial by jury, would only “provoke unnecessary multiplication and fragmentation of proceedings”.[37]
[35][2002] HCA 22
[36]Ibid at 497
[37]Ibid at 483
53Applying those principles to this case, the correct course of action for O’Connell to take, if she disagreed with the interlocutory decision to permit cross-examination on the topic of the Court of Appeal decision, was to wait for the final judgment of Magistrate Hodgson as to her application for a PSIO. At this point, if the decision was adverse to her, she could have brought an appeal and nominated the interlocutory decision to allow the cross-examination as an error which affected the final judgment.
54It can be seen from the application of those principles that it does not matter whether there is an error of law demonstrated in the Magistrate permitting the cross-examination because even if there was, it did not sanction O’Connell taking the step she did, of terminating her participation in the Webex hearing of her own accord.
55However, given this matter has been raised by O’Connell, I will deal with it. When regard is had to the recording it can be appreciated that the respondent’s Counsel had not asked an actual question at the time O’Connell terminated her link. It therefore cannot be ascertained whether there was any contravention of s41 of the Evidence Act.
56Turning then to deal with Part 3.10 as to privileges. It will be recalled that O’Connell claimed that she had legal advice that to discuss the proposed medical negligence claim against the doctor would be to delve into legally privileged matters. From the brief statement she made about this in combination with the fact that no substantial question was asked about the claim itself – rather the introduction to the question was about the Court of Appeal decision – it is almost impossible to conceive of how any issue of legal privilege could arise. Given these reasons, if I had to reach a decision, I conclude that the questioning immediately prior to O’Connell terminating the Webex link did not offend the Evidence Act, either s41 or Part 3.10.
57In accordance with my reasons set out above, I dismiss the first ground of appeal.
Ground 2: Factual error
58This ground is particularised in the following way by O’Connell:
“The Magistrate failed to take into account that the Appellant had an interim order against the Respondent already and she and her trades had appeared on site under the instruction of her then barrister Tim Fitzpatrick, Orders of the Building Appeal Board, VCAT Orders and Magistrate Court Orders. The Appellant suffered a fractured wrist that day indirectly because of the shocking actions of the Respondent, Tony Gale that has left her with a permanent disability in her wrist as the bone is shattered and inoperable.”
59It can be seen that none of these factual matters bear on the Magistrate’s decision to dismiss O’Connell’s application as a result of her terminating her participation in the Webex hearing. The alleged failure to take into account the facts particularised in this ground have no material bearing on the Magistrate’s decision. There is no merit in this ground. I dismiss it.
Ground 3: Discretionary error
60This ground is particularised in the following way:
“The Magistrate erred in not allowing me to rejoin the Webex. I was locked out and a judgement was made in my absence.”
61I take this ground to allege that O’Connell was denied a fair hearing.
62In support of this ground O’Connell tendered four emails she sent to the Court on 22 June 2021 starting at 12.48pm.[38] In the first she states, “I tried to rejoin but it came up as the meeting had ended.”
[38]Exhibit A20
63What is revealed from the recording is that the Magistrate clearly told O’Connell the consequences of leaving. She reminded her that if she left the matter would be heard in her absence. O’Connell then left. The Magistrate waited for her to re-join. She did not re-join. On my understanding of the Webex recording, and as the respondent submitted, this occurred early on in the hearing at approximately 11.08am. There is no evidence that O’Connell attempted to re-join. The Magistrate had fairly explained why the questioning was allowed and the consequences if O’Connell left. The process was fairly explained and had to do justice to both parties. It would be unfair in the extreme to allow a party to simply terminate their participation in a proceeding and give no indication of when they will resume. This is even more acute when they are the moving party. The Magistrate afforded the opportunity for O’Connell to re-join after a short break. She did not, and the Magistrate then proceeded in the manner she outlined. There was no denial of a fair hearing. I dismiss this ground.
64Lastly it can be seen that the Magistrate struck out the application for “want of prosecution”. Though the appropriateness of this order was not in issue, the Magistrate herself raised a query as to the whether this was the correct formulation. The principles to be applied in cases of this kind are well settled. In Bishopsgate Insurance Australia Ltd (In liq) v Deloitte Haskins & Sells,[39] the Court of Appeal considered the operation of the former Supreme Court Rules Chapter 1 r23 in the context of an application that the relevant proceeding be stayed, essentially for want of prosecution. The Court of Appeal applied the principles adopted by Lord Griffiths in his speech in Department of Transport v Chris Smaller (Transport) Ltd,[40] as follows:
“The power [to dismiss a proceeding for want of prosecution] should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, eg disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court, or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants, either as between themselves and the plaintiffs, or between each other, or between them and a third party.”
[39][1999] 3 VR 863
[40][1989] 1 All ER 897 at [6]
65Applying those principles, the Magistrate clearly made an order that was appropriate, as the actions of O’Connell could not be regarded as other than an intentional and contumelious disobedience of a court direction. The learned Magistrate made the correct order.
The Cost Order appealed from
66From her documents I understand O’Connell to formulate her grounds of appeal as:
“It is a breach of the provisions of the Evidence Act, this line of questioning, the questions which were improper questions that had nothing to do with my IVO application against Gale and only brought to harass, annoy and belittle me re my credibility.
It was an error of law as my application against Gale was not vexatious, frivolous or filed in bad faith. It was an cost order against me contrary to Law and the provisions of the Personal Safety Intervention Orders Act s. 111.” (sic)
67I have dealt with the first part of this ground as the alleged breached of the Evidence Act above. I consider that the second paragraph represents O’Connell’s real complaint: namely, a legal error in the Magistrate’s application of s111 of the Act.
68The legislative framework as to the award of costs pursuant to the Act is set out in s111:
“Costs
(1) Each party to a proceeding for a personal safety intervention order under this Act must bear the party’s own costs of the proceeding.
(2) In a litigation restraint order proceeding—
(a)if a person is made subject to an extended litigation restraint order or an acting in concert order, that person must bear the costs of the proceeding, other than the Attorney-General’s costs if the Attorney-General is a party to the proceeding; and
(b)if a person is not made subject to an extended litigation restraint order or an acting in concert order, each party must bear the party’s own costs.
(3) Despite subsections (1) and (2)—
(a)the court may make an order about costs if the court decides that exceptional circumstances warrant otherwise in a particular case; or
(b)if the court is satisfied in a particular case that the making of any application under this Act was vexatious, frivolous or in bad faith, the court may award costs against the applicant.
(4) If the court decides there are grounds to award costs against a person but the person is not present in court, the court may—
(a)adjourn the proceeding; and
(b)give the parties to the proceeding notice that an order for costs will be made on the next mention date unless the party against whom the costs will be awarded contests the making of the order on the mention date.”
69At the hearing as to costs O’Connell relied on submissions of Ms Mak, her barrister. These were admitted into evidence on this appeal.[41]
[41]Exhibit A7 Submissions of K Mak of Counsel
70The relevant ruling of the Magistrate is not before the Court. There is neither the Webex recording of her ruling or a transcript of what occurred on 13 July 2021 or 4 August 2021.
71Dealing with the matter as best I can on that basis, I make the following observations. The Magistrate here had heard the case on three days and on the fourth day struck out the relevant case. He was well appraised of the parties’ positions. He had heard the majority of O’Connell’s case. While there were multiple applications on foot, the relevant application was one initiated and pursued by O’Connell over a long period of time. That claim was commenced in September 2020 and involved incidents occurring since 2018.[42] I set those matters out to demonstrate this was a substantial matter to which the Court had devoted significant time and resources. Prior to O’Connell terminating the Webex link, Counsel for Gale had foreshadowed the cross-examination and the Magistrate had agreed that was permitted. When O’Connell indicated that she would leave the Webex hearing if that was permitted the Magistrate told her that as a result the case might proceed without her. I set this out to demonstrate that the Court processes were well-established and made known to O’Connell at the time she made the decision to terminate her link. After she had taken that step the Magistrate adjourned for a short period to permit O’Connell to re-join. She did not. I set this out to make it clear that a further opportunity was granted by the Magistrate to accommodate O’Connell. When she did not re-join, the case proceeded in accordance with the Magistrate’s previous indication. I set this out to demonstrate that the Magistrate followed a process understood by the litigants in an open and transparent fashion. The Magistrate then made the strike-out order. However, when the costs application was made the Magistrate adjourned that hearing to 13 July 2021. This clearly allowed O’Connell to become aware that such an application had been made and she was given time to prepare for the hearing. At this time O’Connell was represented by Counsel who made submissions in response to the application. I set this out to demonstrate that the Magistrate afforded O’Connell an opportunity to be heard on an issue that she was not aware of at the time she terminated her involvement in the Webex hearing. There was compliance with the rules of procedural fairness.
[42]CB 113-114
72Having set that out I turn to the application of the Act.
73It can be seen that s111 clearly states that the usual order as to costs is that each party bear their own costs. Such a presumption can be displaced where:
(a) There are exceptional circumstances; or
(b) The Court is satisfied that a party has made an application that was vexatious, frivolous or in bad faith.
74Dealing with the first ground. There is no definition of the term “exceptional circumstances” in the Act. As to that phrase, it was said by his Honour Judge O’Neill in Garcev v Higgs[43] that it meant “a course of conduct by one party so exceptional as to warrant a departure from the general rule.” In another context, Hedigan J stated:[44]
“Exceptional is defined, contextually, in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning “unusual, special, out of the ordinary course”. This does not mean any variation from the norm.
The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or exception.”
(Footnote omitted.)
[43][2020] VCC 927
[44]Owens v Stevens (unreported, Supreme Court, Vic, Hedigan J, No 6834 of 1991, 3 May 1991) at 16, 17
75This broad proposition was accepted by the Court of Appeal in R v Ioannou when they stated:[45]
“As these expressions indicate, the circumstances cannot fall within the range of normally anticipated consequences, behaviours or exigencies.”
[45]R v Ioannou [2007] VSCA 277 at [17]
76Applying that formulation to the facts of this case it can be seen that the behaviour of O’Connell in terminating the hearing and then not re-joining, despite the warning as to the effect of that decision, constitutes behaviour that is not normally anticipated. Such behaviour constitutes “an exceptional circumstance” and permitted the Magistrate to make the costs order he did. There was no error in her interpretation of s111. I dismiss this ground of the appeal.
77As a result of the above findings there is no error of law, fact or discretion demonstrated by any of the grounds of the appeal. The Court’s jurisdiction is not enlivened. I will dismiss the appeal in AP-21-0823.
78The parties will be given liberty for seven days to make application for any consequential orders.
Costs
79In both matters Gale and Burgemeestre seek their costs be paid by O’Connell on an indemnity basis in the event her appeals fail. As O’Connell has failed in both her appeals to this Court, I turn to consider these submissions.
80The starting point for these submissions is as to whether the PSIO regime as to costs is applicable. The Respondents’ submissions seem to suggest, though it is not entirely clear, that s111(3) of the PSIO Act is applicable.[46] As a result in order for this Court to award costs, the Respondent submits that O’Connell would have to be found to have engaged in conduct which was vexatious, frivolous or in bad faith.
[46]See [13] of the Respondents’ submissions filed 5 December 2023
81Alternatively it seems, though it is unclear from the submissions, the respondent’s submit that the County Court Act general power as to costs applies and that they should be awarded their costs on an indemnity basis.
82Section 111 of the PSIO Act imposes a presumption that “…each party to a proceeding for a personal safety intervention order under…” the Act must bear their own costs of the proceeding. That presumption can only be displaced in the event there are “exceptional circumstances” or there has been conduct “…which was vexatious, frivolous or in bad faith…”.[47]
[47]Section 111(3)(a) and (b)
83In my analysis of the legislation it seems clear that s111 has application to both matters, AP-21-0823 and AP-22-0001. In AP-21-0823 O’Connell sought to demonstrate error in the Magistrates decision and then to have a PSIO imposed against Gale. To my mind though this is an appeal of the Magistrate’s order it is still obviously concerned with the imposition of a PSIO, because O’Connell seeks this Court to ultimately impose a PSIO against Gale and the appeal was brought under the PSIO Act.
84In AP-22-0001 O’Connell was concerned with the costs associated with the PSIO which Burgemeestre had brought against her. Though the substantive application was withdrawn the costs orders made by the Magistrate were intimately connected with that PSIO application. They could not sensibly be separated from that application and the way it was brought. This much is apparent from the fact that the chief witness who was to be called was Dr Elliot, who had treated the applicant for the psychological upset said to be caused by O’Connell’s behaviour and was initially said to have given evidence in support of the application. His evidence was still called in relation to the costs issue.
85For these reasons I would find that the facts of both matters on appeal bring them within the ambit of s111 of the Act in that they were “… a proceeding for a personal safety intervention order”. As a result the presumption that both parties bear their own costs applies.
86Further to this reasoning I consider that the decision in AAA supports that finding. In that case his Honour John Dixon J held:
The County Court’s appellate jurisdiction is focused on the decision of the Magistrates’ Court or Children’s Court and affords the County Court on appeal, the powers that those first instance courts could have exercised, under the same legislation empowering those courts…[48]
[48]AAA [2023] VSC 13 at paragraph [64], emphasis added.
87Though this comment was made in a family violence proceedings, for reasons set out above I consider it applies equally to the PSIO Act. I further consider this a clear statement that the PSIO Act regime continues to apply to appeals brought pursuant to s96.
88Given this finding as to the applicability of s111 it now falls to consider whether the actions of O’Connell in the appeals satisfy the tests in s111(3)(a) as constituting “exceptional circumstances” or s111(3)(b) as being “…vexatious, frivolous or in bad faith…”
89In coming to an assessment of O’Connell’s conduct I make it clear I am focused on the actions associated with the appeals in this Court. To consider the substantive behaviour said to ground the applications in the Magistrates Court or the conduct of the Magistrates Court proceedings would be to traverse ground considered and decided in the Magistrates Court or not properly ventilated in this Court. That course would be to subvert the proper appeal process, or to deny parties procedural fairness. An example of this arises at [7(b)] of the respondent’s submissions in relation to AP-21-0823 when they ask this Court to consider O’Connell’s termination of her participation in the Webex hearing before Magistrate Hodgson. That is said to ground a finding that the appeal to this Court was vexatious, frivolous and brought in bad faith. However, that conduct was the subject of factual findings by Magistrate Hodgson and that those constituted “exceptional circumstances” sufficient to award costs against O’Connell. For this Court to descend to make separate factual findings about the conduct and character of those findings is to risk alternate findings being made without any error being demonstrated.
90It was also submitted by the Respondent that O’Connell’s conduct on these appeals constituted behaviour that was vexatious, frivolous and in bad faith. This was said to be demonstrated by the numerous hearings required before the matter came on for hearing and the fact that so much material was filed by O’Connell and most was ruled irrelevant to the appeals. I reject that submission. The primary reason for the numerous hearings in this matter was the decision in AAA which created significant uncertainty in this court as to the conduct of appeals. Numerous directions hearings were called on the Court’s own motion to grapple with the conduct question and the obtaining of transcript. Similarly the parties had to re-cast their grounds of appeal as they could no longer proceed as a hearing de novo. The fact that O’Connell is a self-represented litigant dealing with this quickly changing landscape is also a factor to be borne in mind. Much of the material she sought to tender might well have been relevant in a de novo hearing but not on a broad appeal. Some latitude must be afforded to her in this unique evolving situation. I do not consider her conduct of the appeals to be capable of supporting a finding of being “exceptional” or vexatious, frivolous or made in bad faith.
91As a result of the above I find that neither of the s111(3)(a) or (b) are made out. In the result each party must bear their own costs of both appeals.
- - -
LIST OF EXHIBITS
Appeal commencing 27 November 2023
Cathy O’Connell v Tony Gale
| Number and Identifying Mark on Exhibit | Short Description of Exhibit | Tendered By | Date tendered |
| APPELANT’S EXHIBITS | |||
| A1 | Notice of Appeal – Statement of Grounds of Appeal relied on by Ms O’Connell - CB 6-7 | Appellant | 27/11/2023 |
| A2 | Appeal on Costs – CB 90 | Appellant | 27/11/2023 |
| A3 | Notice of Appeal in Magistrates Court – CB 55 | Appellant | 27/11/2023 |
| A4 | Application and Summons for an Intervention Order – CB 56-57 | Appellant | 27/11/2023 |
| A5 | Notice of Appeal in Magistrates Court – CB 55 *Please note: this exhibit is a duplication of “A3” due to a clerical error | Appellant | 27/11/2023 |
| A6 | Certified Extract – CB 58 | Appellant | 27/11/2023 |
| A7 | Document titled ‘Our response to Garcev v Higgs’ – CB 63-65 | Appellant | 27/11/2023 |
| A8 | Application for Summons and Intervention Order – CB 69-74 | Appellant | 27/11/2023 |
| A9 | Email from Mr Luke Murray to Cathy O’Connell – CB 77 | Appellant | 27/11/2023 |
| A10 | Application for intervention order – CB 82-84 | Appellant | 27/11/2023 |
| A11 | Certified extract of the Magistrates Court dated 4 August 2021 – CB 92 | Appellant | 27/11/2023 |
| MFI - A12 | Memo of Ms K Mak (counsel) – CB 96-99 | Appellant | 27/11/2023 |
| A13 | The response of Ms O’Connell to the affidavit of Mr Gale sworn 28 September 2023 – CB 103-112 | Appellant | 27/11/2023 |
| A14 | The response of Ms O’Connell to Mr Gale’s submissions – CB 113-121 | Appellant | 27/11/2023 |
| A15 | Affidavit of Ms O’Connell dated 24 August 2023 – CB 122-125 | Appellant | 27/11/2023 |
| A16 | Email from Ms O’Connell dated 12 August 2021 being Notice of Appeal regarding costs – CB 160 | Appellant | 27/11/2023 |
| MFI - A17 | A document naming Jack Hazell as the police informant – CB 222 | Appellant | 27/11/2023 |
| A18 | Email from Mr Luke Murray dated 29 June 2021 – CB 225 | Appellant | 27/11/2023 |
| A19 | 19/20 May 2021 and 21/22 June 2021 Webex Recordings from the Magistrates Court | Appellant | 27/11/2023 |
| MFI - A20 | Three emails of Ms O’Connell to the online Magistrates Court at 12.48pm, 1.12pm, 1.15pm, 2.43pm on 22 June 2021 – Supplied to Court via Email | Appellant | 27/11/2023 |
| RESPONDENT’S EXHIBITS | |||
| R1 | The Respondent’s submissions – CB 550-554 | Respondent | 27/11/2023 |
| R2 | Affidavit of Tony Gale dated 28 September 2022 – CB 555-561 | Respondent | 27/11/2023 |
| R3 | List of Exhibits – CB 562 | Respondent | 27/11/2023 |
| MFI - R4 | Respondent’s submissions in relation to costs – CB 573-575 | Respondent | 27/11/2023 |
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